The PA Superior Court has remanded the case of In re: L.B., a minor, Appeal of CCCYS, No. 884 MDA 2017 (December 27, 2017), holding that a mother’s use of illegal drugs while pregnant may constitute child abuse under the Child Protective Services Law if Children and Youth Services establishes that, by using the illegal drugs, the mother intentionally, knowingly, or recklessly caused, or created a reasonable likelihood of, bodily injury to a child after birth.

Clinton County Children and Youth Services (“CYS”) filed an Application for Emergency Protective Custody indicating that L.B. was born in January 2017 at the Williamsport Hospital and that Mother had tested positive for marijuana and suboxone. Additionally, on January 27, 2017 – while pregnant – Mother had completed a drug test and was positive for opiates, benzodiazepines and marijuana. CYS also alleged that L.B. was suffering from withdrawal symptoms and was undergoing treatment at the Williamsport Hospital.

CYS filed a Dependency Petition, alleging that the child was without proper parental care or control and further alleged that the child was a victim of “child abuse” as defined by Pennsylvania’s Child Protective Services Law (“CPSL”). Specifically, CYS alleged and has continued to argue that under the parent, specifically Mother, violated the CPSL by causing bodily injury to the child through a recent act or failure to act.

After a hearing on the matter, the Court of Common Pleas filed an order finding that CYS failed to establish child abuse on the actions committed by the Mother while the child was a fetus. In so ordering, the court noted that “the law does not provide for finding of abuse due to actions taken by an individual upon a fetus.”

CYS timely filed a notice of appeal, arguing that the Trial Court erred by finding that CYS could not establish child abuse in the matter of the actions committed by Mother and in reasoning that the child was a fetus and not considered a child pursuant to the CPSL.

CYS argued that Mother’s prenatal drug use was a “recent act or failure to act” that “caused,” or “created a reasonable likelihood of,” bodily injury because that drug use caused L.B. to be born with withdrawal symptoms. As noted, the trial court rejected this argument, concluding that the CPSL does not permit a finding of child abuse based on Mother’s actions before Child was born.

The Superior Court, however, noted that the CPSL defines “child abuse” as including “intentionally, knowingly or recklessly doing any of the following … (1) Causing bodily injury to a child through any recent act or failure to act or … (5) Creating a reasonable likelihood of bodily injury to a child through any recent act or failure to act.”

Thus, although the Superior Court agreed with Mother that a “fetus” or “unborn child” does not meet the definition of “child” under the CPSL, under the plain language of the statute, Mother’s illegal drug use while pregnant may constitute child abuse if the drug use caused bodily injury to L.B.

In other words, “if CYS establishes that, through Mother’s prenatal illegal drug use, she ‘intentionally, knowingly or recklessly’ caused, or created a reasonable likelihood of, bodily injury to [L.B.] after birth, a finding of ‘child abuse’ would be proper” under the above-noted sections of the CPSL. However, the Superior Court also noted that “prenatal conduct supports such a finding only when the actor ‘intentionally, knowingly, or recklessly’ cause[s], or create[s] a reasonable likelihood of, bodily injury to a child after birth.”

As to the ramifications of a finding of “child abuse,” the Superior Court alluded to the fact that under the CPSL a finding of “child abuse” is not a finding of criminal conduct since the Pennsylvania General Assembly has not created a distinct crime of “child abuse.” However, it also worth noting that the appellate court recognized that there are a number of specific criminal offense that could apply, depending on the circumstances. What is more, “if a trial court finds a parent to be a perpetrator of child abuse as part of a dependency adjudication, the CYS agency would file a ‘founded report’ with the Department of Public Welfare, which would trigger inclusion [of the parent] on the ChildLine Registry.”

In any event, with a prescription opioid and heroin overdose epidemic that has been described as “the worst public health crisis in Pennsylvania,” it is likely that this issue will continue to be a source of litigation as public service agencies, healthcare providers, prosecutors and the courts try to find an answer to the problem.




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