Matthew T. Mangino
The Legal Intelligencer
January 10, 2019
The Pennsylvania Supreme Court ruled that a mother who used
opioids and marijuana during her pregnancy cannot commit child abuse under the
Child Protective Service Act (CPSL), 23 Pa.C.S.A. 6301.
A divided Pennsylvania Supreme Court issued its opinion
interpreting the CPSL on Dec. 28.
The case involved a newborn girl who spent 19 days in the
hospital, being treated for drug dependence that caused severe withdrawal
symptoms. Two weeks before the girl was born the mother, known as A.A.R.,
tested positive for opiates, marijuana and benzodiazepines.
The decision comes in the shadow of an opioid crisis in this
country. The latest statistics show Pennsylvania leading the nation in fatal
overdoses, with about 5,400 in 2017.
In fact, the opinion in In the Interest of
L.J.B., No. J-57-2018 authored by Justice Christine Donohue acknowledged
in a footnote that Gov. Tom Wolf took the unprecedented step of proclaiming the
heroin and opioid epidemic a statewide disaster emergency.
According to Reuters, opioid abuse among pregnant women
affected 6.5 out of every 1,000 delivery hospitalizations in 2014, up from 1.5
per 1,000 in 1999, as tracked by the U.S. Centers for Disease Control and
Prevention.
In this case, A.A.R. was in jail. She was released and
relapsed into drug use, before she learned she was pregnant. She sought
treatment for her addiction but relapsed again.
L.J.B. was born on Jan. 27, 2017. According to Donohue’s
opinion, the child immediately displayed signs of neonatal abstinence syndrome.
Clinton County Children and Youth Social Services took L.J.B. into emergency
protective custody after her birth, and accused A.A.R. of child abuse.
The Juvenile Court ruled that L.B.J. was a dependent
pursuant to the CPSL but conducted a separate hearing to determine if A.A.R.’s
drug use while pregnant was child abuse.
The Juvenile Court held that Children and Youth Services
“cannot establish child abuse in this matter on the actions committed by mother
while child was in fetus.”
The Superior Court reversed agreeing that the CPSL does not
include abuse of a fetus or unborn child, but concluded that the “Mother’s drug
use is a recent act or failure to act under 6303 (b.1) and (5) of the CPSL.”
The Supreme Court took the case as a matter of first
impression.
This is not a criminal matter. Pennsylvania law already
makes clear that mothers cannot be prosecuted for harming their fetuses.
Crimes against the Unborn Child Act, 18 Pa.C.S.A. 2601 makes
it a crime to injure or kill an unborn child. However, the law also establishes
three exceptions: it cannot be used to prosecute people who perform legal
abortions, medical personnel or pregnant women for harming their own unborn
children.
According to the Pittsburgh Post-Gazette, when legislators
were debating the bill before it became law in 1997, opponents worried it would
lead to the prosecution of pregnant women—but supporters said that could not
happen because of the protection written into the law. The law has been used
regularly when a pregnant woman’s unborn child is injured or killed by a third
party.
“These statutes are not intended to prosecute pregnant
women, as you can clearly see from the way the statute is written,” Sara Rose,
staff attorney for the American Civil Liberties Union of Pennsylvania, told the
Post-Gazette in 2017 when prosecutors in Butler County sought to prosecute a
pregnant woman under the statute. “I don’t see, based on the plain language of
the statute, how you can charge a pregnant woman.”
At issue was whether Kasey Rose Dischman could be convicted
of aggravated assault of her unborn child for overdosing in June 2017 when she
was 30 weeks into her pregnancy. Dischman went into cardiac arrest and her
child had to be delivered prematurely.
Butler County Judge William R. Shaffer dismissed that charge
after finding that, although Dischman is accused of committing a “senseless,
selfish and heinous act,” the law does not allow the aggravated assault count
to be applied in cases where the victim is the mother’s own unborn child.
The district attorney appealed to the Superior Court.
Superior Court Judge Carolyn H. Nichols concluded that
Pennsylvania does not criminalize the prenatal acts of mothers-to-be. As a
result, a pregnant woman who overdoses on illegal drugs cannot be prosecuted
for assaulting her unborn child.
In A.A.R.’s appeal the definitions as set forth by the
legislature in the CPSL are crucial. Unlike the Crimes Against the Unborn Child
Act, 18 Pa.C.S.A.2601 as read in conjunction with the Abortion Control Act 18
Pa.C.S.A., 3220 the CPSL does not include a fetus or unborn child in its
definition of “child.”
A child is defined as any person under the age of 18. The
CPSL defines “child abuse” as “intentionally, knowingly or recklessly … causing
bodily injury to a child through any recent act or failure to act.” A “perpetrator”
of child abuse is defined as—for purposes of this case—a parent of a child, 23
Pa.C.S.A. 6306 (a) (1).
The Supreme Court zeroed in on the definition of
“perpetrator.” L.J.B.’s mother contended that pursuant to the clear language of
CPSL, she did not commit “child abuse” while she was pregnant because there was
no “child,” and she therefore was not a “perpetrator.”
A “perpetrator” is “a person who has committed child abuse
under the CPSL,” 23 Pa.C.S.A. 6303 (a). As the parties in this case agreed, the
CSPL’s definition of a “child” does not include a fetus or an unborn child.
Although A.A.R. used illegal drugs while pregnant that
caused bodily injury to L.J.B. she was not a perpetrator of child abuse. A.A.R.
was not yet a parent and A.J. B. was not yet a child.
As a result, according to the Pennsylvania Supreme Court, a
mother cannot be found to have committed child abuse against a child based on
her illegal drug use while pregnant because she was not a perpetrator at the
time of the drug use.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly
& George. His book “The Executioner’s Toll,” 2010 was released by
McFarland Publishing. You can reach him at www.mattmangino.com and
follow him on Twitter @MatthewTManginoTo visit the column CLICK HERE
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