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Pennsylvania Supreme Court Rules as a Matter of 1st Impression That Mother’s Use of Opioids During Pregnancy Not Child Abuse

by Chad Marks

On December 28, 2018, the Supreme Court of Pennsylvania ruled as a matter of first impression that a mother cannot be found to be a perpetrator of child abuse for using drugs while she was pregnant.

On January 27, 2017, A.A.R. (“Mother”) gave birth to a child. At the time of the child’s birth, tests revealed that the Mother had been using Subutex and marijuana during pregnancy. Three days after birth, the child began exhibiting symptoms of neonatal abstinence syndrome (“NAS”).

Mother, despite being able to check on the child, left her without consistently checking on her. Children & Youth Services (“CYS”) sought and was granted emergency protective custody.

CYS filed a dependency petition, alleging the child was without proper parental care or control and that the child was a victim of abuse by the mother. The abuse allegation stemmed from the child being hospitalized for 19 days in which the child suffered from withdrawal due to substances Mother ingested while pregnant.

The Juvenile Court held a proceeding, ordering the parties to file a memoranda of law regarding the allegations under the Juvenile Act 42 Pa. C.S. § 6303 (b.1) (1). Mother argued that 23 Pa. C.S. § 6301-6386 Child Protective Services Law does not protect a fetus or unborn child, and therefore her actions could not be deemed child abuse as a matter of law. The Juvenile Court agreed with the Mother, finding that CYS could not establish child abuse on the actions committed by the mother while the child was a fetus.

CYS appealed that decision to the Superior Court, which reversed the Juvenile Court. The Superior Court ruled, “[u]nder 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 child.” The Superior Court reasoned that although the CPSL definition of “child” does not include “a fetus or unborn child,” Mother’s actions can still constitute a violation of the statute if they “caused, or created a reasonable likelihood of, bodily injury to a child after birth.” Mother appealed to the Pennsylvania Supreme Court.

The Supreme Court granted review on two issues: 1) Does [CPSL] allow a mother to be classified as a perpetrator of “child abuse” in the event she is a drug addict while her child is a fetus and 2) is the intent of 23 Pa. C.S. § 6386 “limited to providing ‘protective services’ to addicted newborns and their families and not so expansive to permit alcoholic or addicted mothers be found to have committed child abuse while carrying a child in her womb?” 

The Court began its analysis by examining the plain language of the statute. Agreeing with the Superior Court in one respect, the Court found that CPSL’s definition of a “child” does not include a fetus or unborn child. The Court determined that by its plain language 23 Pa. C.S. § 6303(a) defines a “child” as a person under 18 years of age. Had the General Assembly intended to include a fetus in that definition it would have expressly done so, just as it has done in other statutory schemes. 

The Court further reasoned that Mother could not have committed child abuse in violation of the statute unless she were a “perpetrator,” but a person cannot be a perpetrator unless there is a “child” at the time of the act. Therefore, the Court concluded, “Mother cannot be found to have committed child abuse against Child based on her illegal drug use while pregnant because she was not a ‘perpetrator’ at the time of the act.”

Accordingly, the Court reversed the Superior Court’s decision and remanded the case for reinstatement of the trial court’s order. See: In the Interest of L.J.B., 199 A.3d 868 (Pa. 2018). 

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