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Pennsylvania Supreme Court Finds That Ingestion Of Drugs While Pregnant Does Not Constitute Child Abuse Under The Pennsylvania Child Protective Services Law

January 4, 2019

A recent Pennsylvania case interpreted the meaning of the Pennsylvania Child Protective Services law but has significance beyond simply a matter of statutory interpretation. The case of In the Interest of LJB the Pennsylvania Supreme Court recently found that drug ingestion while pregnant leading to medical problems for the child after birth cannot be child abuse under the statute.

The facts of the case are tragic and unfortunately all too common in Pennsylvania with the current rash of opioid abuse. In 2016, the mother, who is unnamed in the case, was released from incarceration, after which she relapsed into drug addiction, using opioids (pain pills) and marijuana. She subsequently learned that she was pregnant with L.J.B., the child at the center of the case. She then sought treatment for her addiction, first through a methadone maintenance program and then with Subutex, a prescription designed to treat opioid addiction. Mother relapsed thereafter and tested positive for opiates, benzodiazepines and marijuana, none of which were prescribed for her. Mother gave birth to the child after this and at that time tested positive for marijuana and Subutex. The child began exhibiting symptoms of neonatal abstinence syndrome, including tremors, excessive suck, increased muscle tone and loose stools, which doctors treated with morphine. Mother reportedly left the child in the hospital and did not consistently check on her or stay with her (despite the availability of a room for her to do so). Hospital personnel communicated all of this information to the Clinton County Children and Youth Social Services Agency, which sought and was granted emergency protective custody of the child. During the proceedings at the trial court level, the parties agreed that the child should remain in CYS custody, separately addressed whether Mother’s drug use while pregnant constituted “child abuse” under Pennsylvania law. This was somewhat significant because individuals who are found to engage in “child abuse” are included in a statewide database, the purpose of which is to protect children from further abuse. The trial court found that the law does not provide for a finding of child abuse for actions taken while the child is a fetus. CYS appealed to the Superior Court which disagreed finding that “that a mother’s use of illegal drugs while pregnant may constitute child abuse under the [statute] if CYS 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.”

The Mother appealed to PA Supreme Court which reversed the Superior Court finding that “[h]ad the [Legislature] intended to include a fetus or unborn child under the protections of the CPSL, it would have done so, just as it has in other statutory schemes.” Justice Donohue, writing for a majority of the Court, found that “[m]other cannot be found to have committed child abuse against [the child] based on her illegal drug use while pregnant because she was not a ‘perpetrator’ at the time of the act.” The opinion further stated that a finding of child abuse would not protect against future abuse because it will not prevent the Mother from becoming pregnant again and potentially repeating the behavior. The opinion also states that “once labeled as a perpetrator of child abuse, the likelihood that a new mother will be able to assimilate into the workforce and participate in activities of the child’s life would be diminished. This would contravene the laudatory goal of preserving family unity and a supportive environment for the child.” As stated above, this really concerns an issue of statutory interpretation, but it obviously interplays with family dynamics, women’s health and protection of children. It further goes to prove that there are not simple answers to the current situation involving opioid abuse in this Commonwealth and beyond. While these situations are delicate and involve difficult questions of fact and law, the lawyers at Conway Schadler have experience that can make the difference in these types of situations. Please contact our offices for a free consultation so we can discuss how this substantial experience can be used to your benefit.

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