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-0000009-2017


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

OPINION BY MOULTON, J.:                           FILED DECEMBER 27, 2017

      Clinton County Children and Youth Services (“CYS”) appeals from the

order entered May 24, 2017 finding that CYS cannot establish child abuse

under the Child Protective Services Law (“CPSL”), 23 Pa.C.S. §§ 6301 et seq.,

based “on the actions committed by” A.A.R. (“Mother”) while she was

pregnant with L.B. (“Child”). We conclude 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.     We therefore vacate the order and remand for further

proceedings.

      The trial court summarized the relevant procedural and factual history

as follows:




____________________________________
           *    Retired Senior Judge assigned to the Superior Court.
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              On February 7, 2017, [CYS] filed an Application for
           Emergency Protective Custody indicating that [Child] was
           born [in] January [] 2017 at the Williamsport Hospital, that
           Mother had tested positive for marijuana and suboxone and
           that Mother on January 27, 2017 while pregnant had
           completed a drug test and was positive for opiates,
           benzodiazepines and marijuana. [CYS] also alleged that
           [Child] was suffering from withdrawal symptoms and was
           undergoing treatment at the Williamsport Hospital.

               This Court issued an Order for Emergency Protective
           Custody on February 7, 2017. On February 10, 2017, the
           Honorable Michael F. Salisbury conducted a 72 hour Shelter
           Care Hearing due to this Court’s unavailability and continued
           legal and physical custody of the child with [CYS]. [CYS]
           timely filed a Dependency Petition on February 13, 2017
           alleging that the child was without proper parental care or
           control and further alleged that the child was a victim of
           child abuse as defined by 23 Pa. C.S.A. § 6303. Specifically,
           [CYS] alleged and has continued to argue that under
           Subsection 6303(b.1)(1) . . . the parent, specifically Mother,
           caused bodily injury to the child through a recent act or
           failure to act.1 [CYS] alleged in the Dependency Petition
           that the child had been in Williamsport Hospital for a period
           of nineteen (19) days suffering from drug dependence
           withdrawal due to the substances Mother ingested while
           Mother was pregnant with the child and that Mother tested
           positive for marijuana, opiates and benzodiazepines at the
           time of the child’s birth. Mother had no prescription for any
           of these medications.

                                           ...

               [T]his Court entered an Order finding the child dependent
           on March 15, 2017, maintaining legal and physical custody
           of the child with [CYS] and deferring a decision on the issue
           whether the child was a victim of abuse until the
           Dispositional Hearing which was agreed to by all of the
           parties.
____________________________________________


       The dependency petition alleged Mother committed child abuse under
       1

subsection 6303(b.1)(1). At argument and in its briefs before both the trial
court and this Court, CYS argued that Mother committed child abuse under
subsections 6303(b.1)(1) or (5).

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             On March 16, 2017, this Court entered an Order directing
         the Solicitor for [CYS], the attorney for Mother and the
         attorney for Father to file an appropriate Memorandum of
         Law on the issue of whether Mother may be found to have
         committed abuse of this child as alleged by [CYS]. Mother’s
         attorney and Father’s attorney, along with [CYS’s] Solicitor
         filed said Memorandums of Law timely and at the
         Dispositional Hearing on March 30, 2017, this Court
         continued legal and physical custody of the child with [CYS].
         This Court also at the Dispositional Hearing directed the
         Office of Court Administrator to schedule a further hearing
         concerning the abuse issue as insufficient time was allotted
         at that March 30, 2017 proceeding to receive sufficient
         evidence to decide that issue.         The Office of Court
         Administrator scheduled the issue of abuse for an extended
         hearing on May 26, 2017. Further, a Permanency Review
         Hearing was also scheduled for May 26, 2017. The Guardian
         Ad Litem filed a request for argument on April 4, 2017
         regarding the issue of abuse, indicating that the Guardian
         Ad Litem believed that it would be advantageous for this
         Court and the parties for this Court to decide the legal issue
         before receiving testimony and evidence at an extended
         hearing. This Court scheduled argument for May 9, 2017.

Trial Court Opinion, 5/24/17, at 1-4 (“Rule 1925(a) Op.”).

      The trial court heard argument from all counsel and the guardian ad

litem on May 9, 2017 to determine whether Mother had committed child abuse

within the meaning of section 6303(b.1) of the CPSL. On May 24, 2017, the

trial court filed an order finding that CYS “cannot establish child abuse . . . on

the actions committed by Mother while the child was a fetus.” Order, 5/23/17;

see also Rule 1925(a) Op. at 4 (“[T]he law does not provide for finding of

abuse due to actions taken by an individual upon a fetus.”). On May 25, 2017,

CYS timely filed a notice of appeal.

      On appeal, CYS raises the following issue for our review: “Whether the

Trial Court erred by finding that [CYS] cannot establish child abuse in the

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matter of the actions committed by Mother, reasoning that the child was a

fetus and not considered a child pursuant to 23 Pa.C.S. § 630[3].” CYS’s Br.

at 4.

        CYS argues that Mother’s prenatal drug use was a “recent act or failure

to act” that “caus[ed],” or “creat[ed] a reasonable likelihood of,” bodily injury

under section 6303(b.1)(1) or (5) because that drug use caused Child to be

born with withdrawal symptoms.        The trial court rejected this argument,

concluding that the CPSL does not permit a finding of child abuse based on

Mother’s actions before Child was born.

        “A challenge to the court’s interpretation and application of a statute

raises a question of law.” In re A.B., 987 A.2d 769, 773 (Pa.Super. 2009)

(en banc). Our standard of review is de novo, and our scope of review is

plenary. D.K. v. S.P.K., 102 A.3d 467, 471 (Pa.Super. 2014). This Court has

set forth the following principles for statutory interpretation:

          [O]ur Court has long recognized the following principles of
          statutory construction set forth in the Statutory
          Construction Act, 1 Pa.C.S.A. § 1501 et seq.:

             The goal in interpreting any statute is to ascertain and
             effectuate the intention of the General Assembly. Our
             Supreme Court has stated that the plain language of
             a statute is in general the best indication of the
             legislative intent that gave rise to the statute. When
             the language is clear, explicit, and free from any
             ambiguity, we discern intent from the language alone,
             and not from the arguments based on legislative
             history or ‘spirit’ of the statute. We must construe
             words and phrases in the statute according to their
             common and approved usage. We also must construe
             a statute in such a way as to give effect to all its


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              provisions, if possible, thereby avoiding the need to
              label any provision as mere surplusage.

Id. at 471-72 (quoting C.B. v. J.B., 65 A.3d 946, 951 (Pa.Super. 2013)).

       “As part of [a] dependency adjudication, a court may find a parent to

be the perpetrator of child abuse,” as defined by the CPSL. In re L.Z., 111

A.3d 1164, 1176 (Pa. 2015). The CPSL defines “child abuse” in relevant part

as follows:

           The term “child abuse” shall mean intentionally, knowingly
           or recklessly doing any of the following:

           (1) Causing bodily injury to a child through any recent act
           or failure to act.

                                           ...

           (5) Creating 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). The CPSL defines “child” as “[a]n individual

under 18 years of age,” 23 Pa.C.S. § 6303(a), and “bodily injury” as

“[i]mpairment of physical condition or substantial pain.” Id. at 6303(a).2

       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. We agree with Mother that a “fetus” or “unborn child” does not meet




____________________________________________


       2The question whether Child suffered “bodily injury” within the meaning
of the CPSL is not before us on this appeal.



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the definition of “child” under the CPSL.3 CYS does not appear to disagree.4

Once born, however, the infant is a “child” – “[a]n individual under 18 years

of age” – as defined by the statute. Further, Mother’s drug use is a “recent

act or failure to act” under 6303(b.1)(1) and (5). Therefore, if CYS establishes

that through Mother’s prenatal illegal drug use she “intentionally, knowingly

or recklessly” caused, or created a reasonable likelihood of, bodily injury to

Child after birth, a finding of “child abuse” would be proper under section

6303(b.1)(1) and/or (5).

       A finding of “child abuse” under the CPSL is not a finding of criminal

conduct.5 The Pennsylvania Supreme Court has described the purpose of the

CPSL as follows:

____________________________________________


       3 We note that the CPSL also includes a definition of “newborn,”
providing that a “newborn” is “[a] child less than 28 days of age as reasonably
determined by a physician.” 23 Pa.C.S. § 6303(a) (incorporating definition of
newborn contained in section 6502); 23 Pa.C.S. § 6502. Further, the
Pennsylvania General Assembly included in other statutes a definition of, and
provided protections for, “fetus” and “unborn child.” For example, the
Pennsylvania Abortion Control Act defines “unborn child” and “fetus,” stating
“[e]ach term shall mean an individual organism of the species homo sapiens
from fertilization until live birth,” 18 Pa.C.S. § 3203, and the Crimes Against
the Unborn Child Act adopts the definition of “unborn child” found in the
Abortion Control Act, 18 Pa.C.S. § 2602. The CPSL includes no such
definitions.

       4 Rather, CYS argues that a mother’s actions while pregnant may result
in a finding of child abuse “once the fetus is born and a child as defined by 23
Pa.C.S. § 6303.” CYS’s Br. at 17.

       5The Pennsylvania General Assembly has not created a distinct crime
of “child abuse.” Instead, crimes that specifically address child victims are



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           The need to prevent child abuse and to protect abused
           children from further injury is critical. The legislature sought
           to encourage greater reporting of suspected child abuse in
           order to prevent further abuse and to provide rehabilitative
           services for abused children and their families.[6] The Act
           also establishes a statewide central registry for the
           maintenance of indicated and founded reports of child
____________________________________________


found in various parts of the crimes code. See, e.g., 18 Pa.C.S. § 3122.1
(statutory sexual assault); 18 Pa.C.S. § 3121(c) (rape of a child); 18 Pa.C.S.
§ 3121(d) (rape of a child with serious bodily injury); 18 Pa.C.S. § 2901(a.1)
(kidnapping of a minor); 18 Pa.C.S. § 2702(a)(8) (defining aggravated assault
to include “to cause or intentionally, knowingly or recklessly causes bodily
injury to a child less than six years of age, by a person 18 years of age or
older”); and 18 Pa.C.S. § 2701(b) (grading simple assault as a misdemeanor
of the first degree if committed against a child under the age of 12 by a person
over the age of 18).

       6Section 6386 of the CPSL requires mandatory reporting with respect
to children under one year of age, under the following circumstances:

           (a) When report to be made.--A health care provider
           shall immediately make a report or cause a report to be
           made to the appropriate county agency if the provider is
           involved in the delivery or care of a child under one year of
           age who is born and identified as being affected by any of
           the following:

              (1) Illegal substance abuse by the child’s mother.

              (2) Withdrawal symptoms resulting from prenatal drug
              exposure unless the child’s mother, during the
              pregnancy, was:

                     (i) under the care of a prescribing medical
                     professional; and

                     (ii) in compliance with the directions for the
                     administration of a prescription drug as directed
                     by the prescribing medical professional.

              (3) A Fetal Alcohol Spectrum Disorder.

23 Pa.C.S. § 6386(a).



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           abuse, as identifying perpetrators of abuse serves to further
           protect children. Recognizing that identifying someone as a
           child abuser can profoundly impact that person’s reputation,
           the release of such information is advocated only in certain
           limited venues. [R]eports of indicated and founded abuse
           identifying the perpetrator can be released to law
           enforcement, social work agencies, employers in child care
           services and other related venues[].

G.V. v. Dep’t of Public Welfare, 91 A.3d 667, 670-71 (Pa. 2014) (quoting

P.R. v. Dept. of Pub. Welfare, 801 A.2d 478, 483 (2002)) (alterations in

original). Further, “[a]n individual can . . . petition to expunge the founded

report[7] from ChildLine through a Department of Public Welfare administrative

process that would eventually be subject to appeal in Commonwealth Court.”

In re L.Z., 111 A.3d at 1177.

       The sole question before us is whether a mother’s illegal drug use while

pregnant may constitute child abuse under the CPSL if it caused, or created a

reasonable likelihood of, bodily injury to a child after birth.     We make no

determination as to whether CYS has met its burden in this case. Nor do we

address what other acts by a mother while pregnant may give rise to a finding

of child abuse. We emphasize, however, that prenatal conduct supports such

a finding only when the actor “intentionally, knowingly, or recklessly” caused,

or created a reasonable likelihood of, bodily injury to a child after birth.


____________________________________________


       7If a trial court finds a parent to be a perpetrator of child abuse as part
of a dependency adjudication, the CYS agency would file a “founded report”
with the Department of Public Welfare, which would trigger inclusion on the
ChildLine Registry. In re L.Z., 111 A.3d at 1176-77. Inclusion on the
ChildLine Registry also can be triggered outside of the dependency process.
Id. at 1177.

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         Order vacated. Case remanded for further proceedings.    Jurisdiction

relinquished.

         Judge Stabile joins the opinion.

         Judge Strassburger files a concurring opinion in which Judge Moulton

joins.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/27/17




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