J-S62019-17

                                2017 PA Super 411

IN THE INTEREST OF: L.B., A MINOR            :      IN THE SUPERIOR COURT OF
                                             :            PENNSYLVANIA
                                             :
                                             :
APPEAL OF: CCCYS                             :
                                             :
                                             :
                                             :
                                             :          No. 884 MDA 2017

                Appeal from the Order Entered May 24, 2017
 In the Court of Common Pleas of Clinton County Juvenile Division at No(s):
                           CP-18-DP-0000009-17

BEFORE:      STABILE, MOULTON, and STRASSBURGER,* JJ.

CONCURRING OPINION BY STRASSBURGER, J.:FILED DECEMBER 27, 2017

      There is no doubt that prenatal drug use is affecting adversely

increasing numbers of our Commonwealth’s children. Fueled in part by the

opiate drug epidemic, the rate of neonatal hospital stays related to

substance use increased by 250% between fiscal years 2000 and 2015. PA

Healthcare    Cost    Containment        Council,     NEONATAL   AND   MATERNAL

HOSPITALIZATIONS RELATED   TO   SUBSTANCE USE, (2016). Nearly 1 in 50 neonatal

hospital stays in fiscal year 2015 involved a substance-related condition. Id.

      There is also no doubt that most pregnant women who use illegal

drugs during their pregnancies do so not because they wish to harm their

child, but because they are addicted to the drugs. While I join the Majority’s

opinion today based upon the language of the statute, I question whether




*Retired Senior Judge assigned to the Superior Court.
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treating as child abusers women who are addicted to drugs results in safer

outcomes for children.

      The Child Protective Services Law (CPSL) contains explicit provisions

allowing child welfare agencies to intervene in certain instances where a

child is affected by maternal drug use at birth.       See 23 Pa.C.S. § 6386

(requiring health care providers to report to the appropriate county agency

instances of children who are under one year of age and affected by certain

types of substance abuse and mandating the agency to conduct an

assessment of risk to the child, ensure the child’s safety, and provide

services to the family as needed). Pennsylvania added these requirements

to the CPSL in 2006 in response to a 2003 amendment to the federal Child

Abuse Prevention and Treatment Act (CAPTA).

      When addressing Congress during the debate of the 2003 amendment

to   CAPTA, Congressman James         Greenwood, a former child services

caseworker who authored the amendment, stated that the goal was to

intervene after birth and prevent future harm to children who are at risk of

child abuse and neglect due to their parents’ drug use.        149 Cong. Rec.

H2313, H2362 (daily ed. March 26, 2003) (statement of Congressman

James Greenwood). Congressman Greenwood noted, however, that treating

prenatal drug use as child abuse is “problematic” because the drug use

typically   results   from   a   woman’s   substance   abuse   problem.   Id.

Furthermore, he described how treating prenatal drug use as child abuse

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may result in further unintended harm to the child because it “may even

drive [the mother] away from the hospital if she knows she is going to face

[being treated as a child abuser], and she may choose to deliver at home in

a dangerous situation.”1 Id.

      Not only may it cause a woman to avoid the hospital, in my view,

labeling a woman as a child abuser may make it less likely that the woman

would choose to seek help for her addiction during pregnancy or receive

prenatal care. Moreover, because the CPSL permits the agency to intervene

when a newborn is affected by prenatal drug use, and the agency may even

seek to remove the child or have the child adjudicated dependent if

continued drug use poses an ongoing risk to the child, determining that a

woman is a child abuser solely based upon her prenatal drug use does little

to ensure the safety of the child.2

      In addition, although the Majority limits its decision to illegal drug use

during pregnancy, see Majority Opinion at 8, its construction of the statute

1 CAPTA explicitly specifies that the requirement that health care providers
notify child protective services “shall not be construed to – (I) establish a
definition under Federal law of what constitutes child abuse or neglect; or
(II) require prosecution for any illegal action[.]”           42 U.S.C. §
5106a(b)(2)(B)(ii).

2 L.B.’s guardian ad litem did not take a position on this issue in the trial
court and did not file a brief before this Court. Although the issue primarily
affects Mother, it does affect L.B. indirectly; therefore, in my view, the
guardian ad litem should have determined whether it was in L.B.’s best
interest to make a finding of child abuse against Mother and advanced the
corresponding position.



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supports no such limitation. We should not delude ourselves into thinking

that our decision does not open the door to interpretations of the statute

that intrude upon a woman’s private decisionmaking as to what is best for

herself and her child. There are many decisions a pregnant woman makes

that could be reasonably likely to result in bodily injury to her child after

birth,3 which may vary depending on the advice of the particular practitioner

she sees and cultural norms in the country where she resides.       Should a

woman engage in physical activity or restrict her activities? Should she eat

a turkey sandwich, soft cheese, or sushi?    Should she drink an occasional

glass of wine? What about a daily cup of coffee? Should she continue to

take prescribed medication even though there is a potential risk to the child?

Should she travel to countries where the Zika virus is present? Should she

obtain cancer treatment even though it could put her child at risk? Should

she travel across the country to say goodbye to a dying family member late

in her pregnancy? Is she a child abuser if her partner kicks or punches her

in her abdomen during her pregnancy and she does not leave the

relationship because she fears for her own life?    While it is true that the




3 Child abuse may exist even when the child does not suffer bodily injury as
long as there is a reasonable likelihood of bodily injury. See 23 Pa.C.S.
§ (b.1)(5).


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woman must act at least recklessly for her decision to constitute child abuse,

reasonable people may differ as to the proper standard of conduct.4

        Although the legislature expanded the definition of child abuse in 2013

to capture more instances where children are placed at risk, I am not certain

that the legislature really intended the CPSL’s child abuse definition to apply

to decisions that pregnant women make.             However, based upon the

language of the statute, what we have decided today is that the legislature

intended that a woman be found to be a child abuser when she engages in

any act, or fails to engage in any act, prior to a child’s birth, if that act

creates a reasonable likelihood of bodily injury to a child once he or she is




4   The CPSL incorporates the following definition of recklessness:

        A person acts recklessly with respect to a material element of an
        offense when he consciously disregards a substantial and
        unjustifiable risk that the material element exists or will result
        from his conduct. The risk must be of such a nature and degree
        that, considering the nature and intent of the actor’s conduct
        and the circumstances known to him, its disregard involves a
        gross deviation from the standard of conduct that a reasonable
        person would observe in the actor’s situation.

23 Pa.C.S. § 6303(a) (incorporating 18 Pa.C.S. § 302).               The CPSL
emphasizes that “conduct that causes injury or harm to a child or creates a
risk of injury or harm to a child shall not be considered child abuse if there is
no evidence that the person acted intentionally, knowingly or recklessly
when causing the injury or harm to the child or creating a risk of injury or
harm to the child.” 23 Pa.C.S. § 6303(c).


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born, so long as she consciously disregards a substantial and unjustifiable

risk that such an injury may result.5 This is quite broad indeed.

      This case presents an issue of first impression. In my opinion, it also

presents an issue of substantial public importance that should be reviewed

by this Court en banc or our Supreme Court. I respectfully concur.

      Judge Moulton joins.




5
  I note, as the Majority does, that the dependency petition in this case
alleged only that Mother committed child abuse under subsection
6303(b.1)(1). CYS did not begin to rely upon subsection 6303(b.1)(5),
which is broader than subsection 6303(b.1)(1), until CYS presented
argument and briefs before the juvenile court. It does not appear that
Mother objected to inclusion of subsection 6303(b.1)(5). However, parents
are entitled to notice of the allegations being pled against them and CYS
should have requested permission to amend its dependency petition.

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