In re Interest of L.J.B.

199 A.3d 868

In the INTEREST OF: L.J.B., a Minor

Appeal of: A.A.R., Natural Mother

No. 10 MAP 2018

Supreme Court of Pennsylvania.

Argued September 25, 2018

Decided December 28, 2018

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

JUSTICE DONOHUE

The Pennsylvania General Assembly enacted the Child Protective Services Law, 23 Pa.C.S. §§ 6301 - 6386 ("CPSL"), based on its finding that child victims of abuse urgently need effective services to prevent further injury and impairment. Id. , § 6302(a). Its purpose is

to encourage more complete reporting of suspected child abuse; to the extent permitted by this chapter, to involve law enforcement agencies in responding to child abuse; and to establish in each county protective services for the purpose of investigating the reports swiftly and competently, providing protection for children from further abuse and providing rehabilitative services for children and parents involved so as to ensure the child's well-being and to preserve, stabilize and protect the integrity of family life wherever appropriate or to provide another alternative permanent family when the unity of the family cannot be maintained. It is also the purpose of this chapter to ensure that each county children and youth agency establish a program of protective services with procedures to assess risk of harm to a child and with the capabilities to respond adequately to meet the needs of the family and child who may be at risk and to prioritize the response and services to children most at risk.

Id. , § 6302(b). A finding that a person has committed child abuse¹ results in the inclusion of the actor in a statewide database, id. , §§ 6331, 6338(a), the purpose of which is to protect children from further abuse. P.R. v. Dep't of Pub. Welfare , 569 Pa. 123, 801 A.2d 478, 483 (2002). Inclusion on the statewide database impacts a person's ability to obtain certain kinds of employment, housing, and participate in certain volunteer activities. See 23 Pa.C.S. §§ 6344, 6344.1, 6344.2.

We address here an issue of first impression under the CPSL: whether a woman's use of opioids while pregnant, which results in a child born suffering from neonatal abstinence syndrome ("NAS"), constitutes "child abuse" as defined.² We conclude, based on the relevant statutory language, that a mother cannot be found to be a perpetrator of child abuse against her newly born child for drug use while pregnant. We therefore reverse the decision of the Superior Court and remand the matter for reinstatement of the trial court's order.

As all of the pertinent terms are defined by statute, we set forth the relevant statutory definitions in order to provide context for our discussion of this case. The CPSL defines "child abuse," in relevant part, as "intentionally, knowingly or recklessly ... (1) [c]ausing bodily injury to a child through any recent act or failure to act," or "(5) [c]reating 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). A "recent act" is "[a]ny act committed within two years of the date of the report to the department or county agency." Id. , § 6303(a).

Not every person who harms or injures a child is a perpetrator of "child abuse" under the CPSL. Instead, a "perpetrator" is defined as "[a] person who has committed child abuse as defined in this section," id. , and is limited to the following individuals:

(i) A parent of the child.

(ii) A spouse or former spouse of the child's parent.

(iii) A paramour or former paramour of the child's parent.

(iv) A person 14 years of age or older and responsible for the child's welfare or having direct contact with children as an employee of child-care services, a school or through a program, activity or service.

(v) An individual 14 years of age or older who resides in the same home as the child.

(vi) An individual 18 years of age or older who does not reside in the same home as the child but is related within the third degree of consanguinity or affinity by birth or adoption to the child.

(vii) An individual 18 years of age or older who engages a child in severe forms of trafficking in persons or sex trafficking, as those terms are defined under section 103 of the Trafficking Victims Protection Act of 2000 (114 Stat. 1466, 22 U.S.C. § 7102 ).

Id. , § 6306(a)(1). The CPSL defines a "child" as "[a]n individual under 18 years of age." Id. , § 6303(a).

With these definitions in mind, we turn to the uncontested facts of this case. In 2016, A.A.R. ("Mother"), was released from incarceration, after which she relapsed into drug addiction, using opioids (pain pills) and marijuana. Mother subsequently learned that she was pregnant with L.J.B. ("Child"). She estimated that she was approximately four months pregnant at that time. Thereafter, she sought treatment for her addiction, first through a methadone maintenance program³ and then with subutex.⁴ Mother again relapsed and in mid-January 2017 she tested positive for opiates, benzodiazepines and marijuana, none of which were prescribed for her.

Mother gave birth to Child on January 27, 2017 at Williamsport Hospital. At the time of Child's birth, Mother tested positive for marijuana and subutex. By the third day of life, Child began exhibiting symptoms of NAS, including tremors, excessive suck, increased muscle tone and loose stools, which doctors treated with morphine. Mother reportedly left 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 ("CYS").

On February 7, 2017, CYS sought and was granted emergency protective custody of Child. The juvenile court held a shelter hearing on February 10, 2017 and ordered Child to remain in CYS' care. CYS then filed a dependency petition alleging that (1) Child was "without proper parental care or control ... as required by law" pursuant to section 6302(1) of the Juvenile Act ( 42 Pa.C.S. §§ 6301 - 6375 ), and (2) that Child was a victim of child abuse by a perpetrator as defined by section 6303(b.1)(1) of the CPSL in that Mother "caus[ed] bodily injury to a child through any recent act or failure to act." Dependency Petition, 2/13/2017, at 3, 5. The child abuse allegation was based on Child's hospitalization for nineteen days, during which Child "suffer[ed] from withdrawal due to substances Mother ingested while Mother was pregnant with her." Id. at 5. The juvenile court continued the initial dependency hearing because of its concern that Mother and J.W.B. ("Father") did not receive proper notice. Prior to the rescheduled hearing, CYS filed another dependency petition containing the same allegations of dependency and child abuse, but adding information concerning visits between the parents and Child and Mother's admitted continued drug use.

On March 15, 2017, by agreement of the parties, the juvenile court adjudicated Child dependent pursuant to section 6302(1) of the Juvenile Act. It deferred to a separate proceeding the question of whether Mother's drug use while pregnant constituted child abuse, and ordered the parties to file memoranda of law for the court's review.

CYS filed its brief in support of a finding of child abuse on March 23, 2017, therein averring that Mother's conduct satisfied subsections (1) and (5) of the definition of "child abuse" in that her "recent act" caused or created a reasonable likelihood of causing bodily injury to Child. See 23 Pa.C.S. § 6303(b.1) (1), (5) ; supra , p. 870. Mother filed a memorandum of law the following day, asserting that the CPSL does not protect a fetus or unborn child, and thus Mother's actions could not be deemed child abuse as a matter of law.

The juvenile court held argument on May 9, 2017. After taking the matter under advisement, it issued an opinion and order, agreeing with Mother that "the law does not provide for [a] finding of abuse due to actions taken by an individual upon a fetus." Juvenile Court Opinion, 5/24/2017, at 4. It thus held that CYS "cannot establish child abuse in this matter on the actions committed by Mother while [C]hild was a fetus." Juvenile Court Order, 5/24/2017, ¶ 1.

CYS appealed to the Superior Court, which reversed. In a unanimous opinion, the court found, "Under 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." In re L.B. , 177 A.3d 308, 311 (Pa. Super. 2017). Although agreeing with Mother (and CYS) that the definition of "child" in the CPSL does not include a fetus or unborn child, it found that "Mother's drug use is a ‘recent act or failure to act’ under 6303(b.1)(1) and (5)," and that her conduct caused or was reasonably likely to cause injury to Child who, now born, constituted a "child." Id. It therefore held "that a mother's use of illegal drugs while pregnant may constitute child abuse under the CPSL 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." Id. at 309 (emphasis in original).

Senior Judge Eugene B. Strassburger authored a concurring opinion, which the majority author joined. Judge Strassburger joined the majority opinion, agreeing that "the language of the statute" required that result. He wrote separately to express his concern of "whether treating as child abusers women who are addicted to drugs results in safer outcomes for children," as this could cause a pregnant woman to avoid a hospital, fail to seek prenatal care, or decide not to pursue treatment for her addiction. L.B. , 177 A.3d at 313-14 (Strassburger, J., concurring). He also acknowledged that the majority's holding could easily be extended to other areas of a pregnant woman's decision making (e.g., drinking coffee, traveling, eating sushi, or undergoing...