PA Supreme Court Determines Prenatal Drug Use Not Child Abuse I KingSpry

PA Supreme Court Determines that Mother’s Prenatal Drug Use Does Not Constitute Child Abuse

Photo of attorney Rebecca A. Young

Posted on January 2nd, 2019
by Rebecca A. Young

In a decision issued almost exactly a year after the Superior Court’s December 27, 2017 decision, the Pennsylvania Supreme Court held on December 28, 2018 that a woman’s activities while pregnant do not constitute child abuse.

The decision, issued in  In the Interest of L.J.B. holds that a woman who engages in drug use while pregnant will not be labeled as a perpetrator of child abuse.  The decision notes the significant negative ramifications such a label would have on parent and child.

LJB was born on January 27, 2017.  The child’s mother had used opioids and marijuana before learning that she was pregnant.  She sought treatment, but relapsed and was using drugs illegally at the time of the child’s birth.

As required by the Child Protective Services Law, hospital staff alerted the Clinton County Children and Youth Services, which took emergency custody of L.J.B. because the child’s mother tested positive for illegal drugs while pregnant and at the time of birth.  L.J.B. was hospitalized for 19 days following birth to address withdrawal symptoms resulting from Mother’s drug use.  The child was adjudicated dependent by agreement of the county agency and the child’s parents, and CYS was granted physical and legal custody.

The trial court also held that the law did not allow it to find that Mother had committed child abuse through her prenatal drug abuse. CYS appealed that legal issue.  The Superior Court held that a mother’s prenatal drug use may, in some circumstances, constitute child abuse.  The Supreme Court found the opposite.

After reviewing the language of the Child Protective Services Law in detail, the Pennsylvania Supreme Court determined that the definition of a “child” in the CPSL does not include a fetus or an unborn child.  Child abuse occurs when a perpetrator intentionally, knowingly or recklessly acts or fails to act and thereby causes bodily injury or creates a reasonable likelihood of bodily injury to a child. Because Pennsylvania law distinguishes between a fetus and a child, the law does not allow a finding of child abuse on a fetus.

The Court also noted the significant practical and policy issues that would arise if a different decision were reached. Pregnant women should not be discouraged from seeking prenatal care and/or from giving birth in the medical setting out of concern that they will be labelled child abusers as the result of a drug addiction. Appending the label will limit the woman’s access to the workforce and ability to participate in activities with the child.

Further, the Court noted that the legislature revised the relevant portion of the CPSL in July, 2018 to state that the mandatory report to CYS when a newborn tests positive for drugs does not constitute a child abuse report.  The county agency is directed by the law to concentrate on a plan for safe care of the child.


heARTbeat is a publication of KingSpry’s Adoption Law and Assisted Reproductive Technology Law Practice Group. It is meant to be informational and does not constitute legal advice.