Arguments filed in abuse case

Attorneys for a Clinton County mother who abused drugs while pregnant and gave birth to a child in withdrawal have filed written arguments in the case, urging the Pennsylvania Supreme Court to rule that drug abuse while pregnant does not equal child abuse.

In January 2017, the woman (known as A.A.R. in court documents) gave birth to an infant (known as L.J.B. in court documents) who, doctors said, suffered from symptoms of withdrawal, including tremors and loose stools, three days after delivery. During L.B.’s labor and delivery, her mother tested positive for oxycodone, marijuana and benzodiazepines. She did not have a prescription for any of these substances.

L.B.’s mother first saw a physician in December 2016, during the third trimester of her pregnancy. The doctor prescribed buprenorphine to treat her opioid addiction, but she kept using opiates during her treatment.

Clinton County Children and Youth Services argued that, under the Child Protective Services Law, the mother’s actions during pregnancy did cause bodily harm to the infant after it was born. The county trial court adjudicated L.B. dependent and placed her in foster care, but ruled that the mother’s actions did not constitute child abuse under the law, because there was no child at the time of the abuse. CYS then filed a petition for appeal in the Superior Court, which broadly interpreted the law, saying the mother’s actions could be considered child abuse if they caused bodily harm to the infant after it was born.

Public support for the mother is high, showcased by the four amicus briefs, or “friend of the court” briefs, also filed Thursday, agreeing with her attorneys’ arguments. Since the Superior Court remanded the case to trial court, two more attorneys, David Cohen and Carol Tracy from the Women’s Law Project in Philadelphia, have taken up the mother’s defense. Robert Lugg, of Lugg & Lugg Law Offices in Lock Haven also represents the mother. Her petition for appeal to the Supreme Court was recently granted.

The organizations that filed amicus briefs were the American Civil Liberties Union of Pennsylvania; National Advocates for Pregnant Women, Community Legal Services of Philadelphia, et al; the Philadelphia Department of Human Services, Support Center for Child Advocates, et al; and the Drug Policy Alliance, Families for Sensible Drug Policy, et al.

The argument for the mother hinges on whether drug abuse during pregnancy constitutes child abuse under the CPSL. It also calls into question whether the consequence of reporting neonatal withdrawal symptoms under the “mandated reporting” provision of the CPSL is limited to providing care and protection for newborns and their families or if the state legislature believes that a mother can be found to have committed child abuse.

In their brief, A.A.R.’s attorneys argued that she could not be a “perpetrator” under the CPSL because there was no child at the time she took drugs. Therefore, they said, she could not be considered the parent of a child. Pennsylvania law says a fetus or unborn child does not meet the legal definition of a child.

“The perpetrator must fit the statutory definition at the time of the actions underlying the allegations. Reading the CPSL any other way would lead to absurd results,” the mother’s brief stated.

Sara Rose, staff attorney for the ACLU of Pennsylvania, said the organization identified many constitutional problems in the Superior Court’s ruling that prenatal drug abuse “may constitute” child abuse if the mother’s actions (or failure to act) before birth caused or created “a reasonable likelihood of bodily injury.”

“Our interest in general has to do with reproductive rights and equality for women,” she said. “The biggest problem, I think, is the right to due process.”

She said the Superior Court’s ruling was so vague that it left the CPSL statute open to multiple interpretations, possibly giving “caseworkers too much discretion to what is child abuse.” Furthermore, she identified violations of a woman’s right to privacy by affecting a woman’s decision-making over whether to have a child and right to equal protection, which prohibits sex-based classification, something Rose said could happen if the court rules prenatal activities undertaken by mothers (a category which, in this case, can only be females) can designate them as child abusers.

The ACLU brief, which was joined by the Feminist Majority Foundation, also echoed the “perpetrator” argument A.A.R.’s attorneys made.

“Contrary to the Superior Court decision…the plain language of the statute provides that an individual cannot be a perpetrator of child abuse for acts undertaken before any of the statutorily recognized relationships to the child exist,” said the brief.

A brief from the Support Center for Child Advocates pointed out that the CPSL and existing referral system for child abuse is adequate to protect infants exposed to substances. “Newborns rarely are sent home with an active user of a controlled substance, and in-home children very likely will be removed from the care of the parents who are known active drug users not engaged in treatment,” the brief said. “Construing prenatal substance exposure as child abuse will not increase infants’ safety or protection.”

Written arguments for CYS, L.B.’s guardian ad litem (a court-appointed researcher for the child’s best interests) and L.B.’s father are due May 29 to the Supreme Court. The court will hear opening arguments in September.

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