Dear CLP subscriber: To better connect precedential judicial decisions across the children’s law field, we are launching a new project to provide summaries of key state supreme court decisions on child welfare and related topics. Our first case, In re L.J.B., 199 A.3d 868 (Pa. 2018), summarizes the recent Pennsylvania Supreme Court decision addressing opiate use while pregnant. In addition to summarizing the court’s holding and reasoning, each case will highlight the practical significance of the decision for the field. As we advance this new project, we welcome your participation. In the future please share recent supreme court cases from your jurisdiction that would be valuable to summarize (Email: Nicole.Johonson@americanbar.org). We hope you find these summaries helpful in advancing your own practice and connecting the children’s law field across jurisdictions.
The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
In re L.J.B., 199 A.3d 868 (Pa. 2018).
The Pennsylvania Supreme Court held that a mother’s use of opioids while pregnant is not civil child abuse under the Child Protective Services Law (CPSL), which carries with it inclusion in a statewide database of child abuse perpetrators. Using statutory interpretation, the supreme court reasoned that the definition of “child,” under the CPSL does not include a fetus or unborn child, and a person is not a perpetrator of child abuse unless there is a “child” at the time of the act.
This case clarifies a mother’s use of drugs while pregnant should not be deemed child abuse with corresponding inclusion in child abuse registries without explicit statutory language to support such a finding. By holding that drug exposure in utero is not child abuse and emphasizing the importance of supporting families in seeking help for substance use, the court has reaffirmed an important message about the goals of child welfare.
A contrary finding in this case could result in penalizing women for seeking prenatal care, medical services, or addiction treatment while pregnant. Note, however, that the decision does not preclude agency involvement in cases with prenatal substance exposure because in Pennsylvania a finding of child abuse is not a necessary predicate for the child welfare agency to provide an array of interventions or services to protect the child, including removal.
Although questions about substance exposure in infants are not new to dependency courts, this decision is timely because it addresses opioid exposure, a growing fact pattern in dependency cases throughout the country. In this respect, the Pennsylvania Supreme Court’s finding can be instructive for other jurisdictions addressing similar facts and applying similar statutory language.
Finally, this decision is significant in the children’s law field because it raises a concern about the collateral consequences of including a person’s name on a child abuse registry, which could significantly impact that person’s future employment, housing, and community participation.
A mother relapsed into using opioids and marijuana soon after her release from incarceration. After learning she was around four months pregnant, the mother sought addiction treatment. Later in her pregnancy, she relapsed again. When the mother gave birth to the child, L.J.B., she tested positive for marijuana and a prescription medication used to treat opioid addiction. L.J.B. began exhibiting symptoms of neonatal abstinence syndrome (NAS) three days after birth. According to reports from hospital personnel, the mother left L.J.B. in the hospital and did not consistently stay with or check on the infant.
The Clinton County Children and Youth Social Services Agency (CYS) filed a dependency petition alleging the child was without proper parental care or control as required by law, and the child was a victim of child abuse by a perpetrator. CYS argued the mother’s conduct satisfied the definition of child abuse because her act of ingesting illegal drugs while pregnant caused or created a reasonable likelihood of bodily injury to L.J.B. A finding of civil child abuse in this instance would result in including the mother’s name in a statewide database of perpetrators, which could impact her future ability to obtain employment and housing and to volunteer with children.
The mother and father agreed to the first part of the dependency petition and the juvenile court adjudicated L.J.B. dependent due to a lack of proper parental care or control. Regarding the second basis for dependency, however, the mother contended that drug use while pregnant does not constitute child abuse because the CPSL does not protect a fetus or unborn child, thus the act of ingesting illegal drugs while pregnant could not be deemed child abuse as a matter of law. The juvenile court agreed with the mother and concluded she had not committed child abuse.
CYS appealed. The appeals court reversed the juvenile court’s decision and held a mother’s use of illegal drugs while pregnant may constitute child abuse under the CPSL if CYS establishes a mother intentionally, knowingly, or recklessly caused, or created a reasonable likelihood of bodily injury to a child after birth. As applied to this case, the appeals court found the mother’s drug use to be a “recent act or failure to act” under 23 Pa. Cons. Stat. §§ 6303(b.1)(1) and (5), and that her conduct caused or was reasonably likely to cause injury to L.J.B., who, now born, constituted a child. The mother appealed. The Pennsylvania Supreme Court granted review.
Pennsylvania Supreme Court Decision
The Pennsylvania Supreme Court reviewed: (1) whether the CPSL allows a mother to be found a perpetrator of child abuse if she is a drug addict while her child is a fetus; and (2) whether the intent of 23 Pa. Cons. Stat. § 6386 is limited to providing protective services to addicted newborns and their families or so expansive as to find child abuse by a mother who was addicted to drugs or alcohol while carrying a child in her womb.
The supreme court noted that whether a woman’s use of opioids while pregnant constitutes child abuse is an issue of first impression that carries significant implications based on “crisis level” opioid addiction rates throughout the United States, including in Pennsylvania.
Reading the plain language of the CPSL, the supreme court held that a mother is not a perpetrator of child abuse if she is addicted to drugs while pregnant. The supreme court reasoned that had the general assembly intended to include a fetus or unborn child under the protections of the CPSL, it would have done so, just as it had in other statutory schemes. The supreme court rejected the appeals court holding and explained the appellate court had created a statutory relationship between a pregnant woman and a fetus that the CPSL does not recognize. Instead, the supreme court held that under the “clear and unambiguous language” of the statute, a person cannot have committed child abuse unless she was a perpetrator and a person cannot be a perpetrator unless there was a child at the time of the act.
The supreme court also reasoned that labeling a mother a perpetrator of child abuse based on drug use while pregnant fails to serve the CPSL goal of preventing future harm because the child will not be in utero again and the label does not prevent her from becoming pregnant or protect a later conceived child. Additionally, the supreme court explained such a label would likely contravene the goal of establishing a supportive community for the child because it would challenge the mother’s ability to assimilate into the workforce and participate in her child’s life.
Two justices issued concurring opinions that applied different approaches to statutory construction but agreed that drug use while pregnant does not constitute child abuse under CPSL. Two justices dissented, asserting the mother committed child abuse because the child suffered bodily injury after birth when she began exhibiting withdrawal symptoms and the injury directly resulted from the mother’s drug use, regardless of whether she ingested the drugs before the child’s birth. The dissenting justices drew a comparison to neglect cases where a parent’s action or inaction occurs well before the ultimate injury but nevertheless directly causes the injury.
Nicole Johnson, JD, MSW, is a staff attorney at the ABA Center on Children and the Law.