Statutory Construction; Prenatal Child Abuse; Addiction

In the Interest of: L.J.B., A Minor, 177 A.3d 308 (Pa. Super. 2017), allocatur granted Apr. 3, 2018, appeal docket 10 MAP 2018

The Supreme Court granted allocatur to review the Superior Court’s determination, overruling the trial court, that as a matter of law a mother’s prenatal illegal drug use can constitute child abuse where the mother’s conduct intentionally, knowingly or recklessly caused harm to the child after birth, such as withdrawal symptoms.

Clinton County Children and Youth Services (CYS) applied for emergency custody of L.J.B, who was born with withdrawal symptoms and whose mother tested positive for illegal drugs while pregnant.  During the ongoing custody proceedings, CYS alleged L.J.B. was a victim of child abuse under 23 Pa. C.S. § 6303.

The trial court held that “the law does not provide for finding of abuse due to the actions taken by an individual upon a fetus.”  The Child Protective Services Law (CPSL) defines relevant child abuse as:

(b.1)  Child abuse.–The term “child abuse” shall mean intentionally, knowingly or recklessly doing any of the following:

(1)  Causing bodily injury to a child through any recent act or failure to act.

. . .

(5)  Creating a reasonable likelihood of bodily injury to a child through any recent act or failure to act.

23 Pa. C.S. § 6303(b.1)(1), (5).  The CPSL defines “child” as “[a]n individual under 18 years of age,” 23 Pa.C.S. § 6303(a), and “bodily injury” as “[i]mpairment of physical condition or substantial pain.” Id. at 6303(a).

Analyzing these provisions, the Superior Court reasoned that even though the definition of child does not encompass a fetus or unborn child, once born, the infant is a child under the statute.  The mother’s drug use while pregnant is a recent act under subsection (1) of 2303(b.1).  The court concluded that if CYS can show that through mother’s prenatal drug use she “intentionally, knowingly, or recklessly” caused, or created a reasonable likelihood of bodily injury to the child after birth, the statute allows a finding of child abuse.

The court noted that a finding of child abuse is not a finding of criminal conduct.  Instead, the CPSL is meant to prevent child abuse and protect abused children from further injury.  However, a finding of child abuse places the abuser into a state-wide central registry, information from which can be released to law enforcement, social work agencies, employers in child care services, and other related venues, and can profoundly impact that person’s reputation.  In a footnote, the court also discussed that under section 6386, health care providers must report to CYS if the provider delivers a child that is affected by illegal substance abuse.

The Supreme Court granted allocatur on the following issues, as Petitioner stated them:

(1) Does 23 Pa.C.S. § 6303 et seq. allow a mother [to] be found a perpetrator of “child abuse” in the event she is a drug addict while her child is a fetus?

(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?

For more information, contact Kevin McKeon or Dennis Whitaker.