Last Updated: Jan 3, 2019
On Dec. 28, 2018, the Supreme Court of Pennsylvania issued its decision in the case of In the Interest of L.J.B. The Supreme Court held that a mother cannot be found to be a perpetrator of child abuse against her newly born child for drug use while pregnant.
At issue in In the Interest of L.J.B. was whether a mother’s use of opioids while pregnant, which resulted in her child suffering from neonatal abstinence syndrome upon birth, constituted child abuse as defined by the Child Protective Services Law (CPSL).
The CPSL at 23 Pa. C.S.A. §6303(b.1), defines child abuse as intentionally, knowingly, or recklessly committing any one of a number of specified acts upon a child. Among these acts is causing or creating a reasonable likelihood of bodily injury to a child through any recent act or failure to act.
Background of the Case
In the case of In the Interest of L.J.B., a mother tested positive for opiates, benzodiazepines, and marijuana while pregnant. She had no prescription for any of these drugs. Upon birth, the child suffered from withdrawal symptoms and was subsequently hospitalized.
Clinton County Children and Youth Services (CYS) initiated proceedings for protective custody of the child. CYS alleged that the child was a victim of child abuse, as defined by the CPSL because the mother’s prenatal drug use was a recent act or failure to act that caused or created a reasonable likelihood of bodily injury, as this drug use caused the child to be born with withdrawal symptoms.
The trail court held that CYS could not establish child abuse based on actions committed by the mother while the child was a fetus. To support this conclusion, the trial court reasoned that the CPSL does not provide for any finding of abuse due to actions taken by an individual upon a fetus. The CPSL defines a “child” as an individual under 18 years of age and does not include any provisions regarding fetuses or unborn children.
CYS appealed the trial court’s decision to the Superior Court of Pennsylvania. The Superior Court vacated the trial court’s order and remanded the case for further proceedings. A mother’s illegal drug use while pregnant, the Superior Court held, may constitute child abuse under the CPSL if CYS establishes that, by using these drugs, the mother intentionally, knowingly, or recklessly created a reasonable likelihood of bodily injury to a child after birth.
The mother subsequently appealed the Superior Court’s decision to the Supreme Court of Pennsylvania.
Supreme Court Decision
The Supreme Court held that since the CPSL’s definition of child does not include a fetus or an unborn child, one cannot be a perpetrator of child abuse, under the CPSL, upon a fetus.
To reach this decision, the Supreme Court examined the statutory language of the CPSL. Again, the CPSL defines a “child” as an individual under 18 years of age. The CPSL includes no definition of or provisions regarding a fetus. Under the CPSL, a “perpetrator” is a person who commits child abuse. Only individuals with certain relationships to a child, such as parents, can be classified as a perpetrator under the CPSL.
With these definitions in mind, the Supreme Court opined that the CPSL requires the existence of a child at the time of the allegedly abusive act in order for the actor to be a perpetrator and for the act to constitute child abuse.
The majority opinion was authored by Justice Donohue. Chief Justice Saylor and Justice Dougherty authored concurring opinions. Justice Mundy authoring a dissenting opinion with Justice Todd joining.
The Pennsylvania Medical Society (PAMED) joined the American Medical Association (AMA) and the American College of Obstetricians and Gynecologists (ACOG) in submitting an amicus curiae brief to the Supreme Court which argued, amongst other issues, that classifying actions taken by a pregnant mother as child abuse could deter a pregnant woman from seeking medical care.
Where Can I Find Additional Information?
PAMED’s Legal Resource Center contains several Quick Consult fact sheets reviewing physicians’ obligations to report suspected child abuse. These Quick Consults thoroughly discuss the mandatory reporting process, answer several frequently asked questions regarding the reporting of child abuse, and detail signs and symptoms of child abuse.
These Quick Consults are a resource available exclusively for PAMED members and can be accessed here.