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IS DRUG USE WHILE PREGNANT CONSIDERED CHILD ABUSE?

The Pennsylvania Superior Court has ruled that illegal drug use by a woman while pregnant could be considered child abuse after the child is born. If a child is born with injuries caused by the mother’s use of drugs, the baby could be defined as an abused child under the Child Protective Services Law (CPSL).

In the case known as In re L.B.,  IN re L.B. decision prenatal drug use.pdf  the Superior Court overturned the ruling of the trial court about a Clinton County woman who tested positive for opiates, benzodiazepines and marijuana after she gave birth in 2017 to a child that suffered symptoms of withdrawal. The office of Children and Youth Services (CYS) appealed the lower court’s finding that actions committed by the mother prior to birth cannot be considered child abuse.  CYS argued on appeal that the mother’s prenatal drug use was a “recent act or failure to act “that then “caused” or “created a reasonable likelihood of bodily injury.” According to the CPSL, bodily injury is the “impairment of physical condition or substantial pain.”

In the decision of a three-judge panel, the Superior Court found that the use of illegal drugs could cause bodily injury, as defined in the CPSL, and they remanded the case to the lower court for a new trial about whether abuse had occurred.  The parties and the Court agreed that a fetus or ‘unborn’ child did not meet the definition of “child” under the CPSL, but the case was not about the definition of life of child.  The Court’s focus was solely on the extent of harm to a child post-birth, if the bodily injury was caused by prenatal acts of the mother. If a child suffers “bodily injury,” then the Courts may find that they have been abused. 49 Pa. Code  §48.51 – definition of child abuse.

The concurring opinion of one of the judges on the panel stated that a full Superior Court panel of more than three judges or the state Supreme Court should review the case.  The judge expressed concern that the decision may ultimately interfere with pre-natal treatment for women addicted to drugs.  The pregnant woman must act “knowingly, intentionally or recklessly” to be considered a perpetrator of child abuse. The judge stated that “we should not delude ourselves into thinking” that the decision could “intrude upon a woman’s private decision-making as what is best for herself and her child.”

IS DRUG USE WHILE PREGNANT CONSIDERED CHILD ABUSE? was last modified: February 13th, 2018 by Judith Homan
Judith Homan About Judith Homan

Attorney Judith L. Homan graduated from Penn State in 1988, and obtained her law degree at the UNH School of Law. She has been with The Mazza Law Group since returning to State College from New Hampshire in 2014. Her primary area of practice is family law.