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Child Protective Services Law Update

Written by: on February 07, 2019 | Category: Blog | Tags:

Recently, the Pennsylvania Supreme Court made national news when they declared that drug use by a pregnant woman cannot be classified a child abuse according to Child Protective Services Law. How did they come to this conclusion? Statutory interpretation.

This was a case a first impression for Pennsylvania Courts, which means no Court had seen or ruled on this particular fact pattern before.

A woman in Clinton County was suffering from an opioid addition in 2016 when she found out she was approximately four months pregnant. Upon realizing this, she sought treatment, but unfortunately continued to use both opiates and various other drugs during her pregnancy.

She then gave birth to a child in January of 2017, the child showed symptoms of neonatal abstinence syndrome. Essentially, the child was going through withdrawal from the drugs the mother had been ingesting. Therefore, the local Child Protective Agency stepped in. Not only did they seek to adjudicate the child dependent (this is required to place the child in foster care) but they also alleged that the mother had committed child abuse for the acts she committed while pregnant.

The question became, can someone commit child abuse with regard to a fetus? The Court of Common Pleas in Clinton County said no. That Court based their decision on the word “child” in the Child Protective Services Law. Under their reading of the law, the victim of abuse must be a “child” at the time of the abusive act. In this case, the Mother’s potentially abusive act, ingesting drugs while pregnant, did not occur to a “child,” therefore, no child abuse could occur.

The County Child Protective Agency appealed this decision to the Superior Court. The Superior Court reversed course and found that, “Under the plain language of the statute, Mother’s illegal drug use while pregnant may constitute child abuse if the drug caused bodily injury to Child.” While the Superior Court noted the Child Protective Services law must protect a “child”, they reasoned that the acts of Mother in this case were recent acts that would likely cause injury to the child in question. Since that child was now born, the requirement of having a “child” was now satisfied. Accordingly, they found the Mother did commit child abuse.

Mother appealed this decision to the Pennsylvania Supreme Court who heard argument in September of 2018. In December of 2018, the Supreme Court issued a decision essentially agreeing with the Trial Court. The Supreme Court found that there could be no child abuse if there was no “child”. They went on to find that if the legislature had wished to include a fetus in the Child Protective Services Law, but chose not to, their intent was clear. There can be no finding of child abuse before birth.

This ruling likely will continue to be a divisive and far-reaching decision for Family Lawyers across the Commonwealth.


Family law attorney, Kellie Rahl-Heffner, offers legal counsel to families facing sensitive legal issues including separation, divorce, child custody, and support.

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