In the Interest of: L.J.B Appeal of: A.A.R. ( 2018 )

[J-57-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
IN THE INTEREST OF: L.J.B., A MINOR : No. 10 MAP 2018
:
: Appeal from the Order of the Superior
APPEAL OF: A.A.R., NATURAL : Court at No. 884 MDA 2017 dated
MOTHER : December 27, 2017 Vacating the
: Order of Clinton County Court of
: Common Pleas, Juvenile Division,
: dated May 24, 2017 at No. CP-18-DP-
: 0000009-2017 and remanding for
: further proceedings
:
: ARGUED: September 25, 2018
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
JUSTICE DONOHUE DECIDED: December 28, 2018
The Pennsylvania General Assembly enacted the Child Protective Services Law,
23 Pa.C.S. §§ 6301-6386 (“CPSL”), based on its finding that child victims of abuse
urgently need effective services to prevent further injury and impairment. Id., § 6302(a).
Its purpose is
to encourage more complete reporting of suspected child
abuse; to the extent permitted by this chapter, to involve law
enforcement agencies in responding to child abuse; and to
establish in each county protective services for the purpose of
investigating the reports swiftly and competently, providing
protection for children from further abuse and providing
rehabilitative services for children and parents involved so as
to ensure the child’s well-being and to preserve, stabilize and
protect the integrity of family life wherever appropriate or to
provide another alternative permanent family when the unity
of the family cannot be maintained. It is also the purpose of
this chapter to ensure that each county children and youth
agency establish a program of protective services with
procedures to assess risk of harm to a child and with the
capabilities to respond adequately to meet the needs of the
family and child who may be at risk and to prioritize the
response and services to children most at risk.
Id., § 6302(b). A finding that a person has committed child abuse1 results in the inclusion
of the actor in a statewide database, id., §§ 6331, 6338(a), the purpose of which is to
protect children from further abuse. P.R. v. Dep’t of Pub. Welfare, 801 A.2d 478, 483
(Pa. 2002). Inclusion on the statewide database impacts a person’s ability to obtain
certain kinds of employment, housing, and participate in certain volunteer activities. See
23 Pa.C.S. §§ 6344, 6344.1, 6344.2.
We address here an issue of first impression under the CPSL: whether a woman’s
use of opioids while pregnant, which results in a child born suffering from neonatal
abstinence syndrome (“NAS”), constitutes “child abuse” as defined.2 We conclude, based
1 Such reports are either “founded” or “indicated.” See 23 Pa.C.S. §§ 6303, 6338.
2 Opioid addiction has reached a crisis level in the United States, and Pennsylvania has
not been immune from its effects. Recent statistics place Pennsylvania among the states
with the highest rates of drug overdose deaths, with opioid-related overdose deaths
occurring at a rate of 18.5 per 100,000 persons. Center for Disease Control and
Prevention, Drug Overdose Death Data (Dec. 19, 2017),
https://www.cdc.gov/drugoverdose/data/statedeaths.html (providing 2016 statistics
indicating that “the states with the highest rates of death due to drug overdose were West
Virginia (52.0 per 100,000), Ohio (39.1 per 100,000), New Hampshire (39.0 per 100,000),
the District of Columbia (38.8 per 100,000), and Pennsylvania (37.9 per 100,000)” – a
forty-four percent increase from 2015 to 2016); National Institute on Drug Abuse,
Pennsylvania Opioid Summary (Feb. 2018), https://www.drugabuse.gov/drugs-
abuse/opioids/opioid-summaries-by-state/pennsylvania-opioid-summary (stating that
Pennsylvania’s rate of opioid drug deaths are above the national average of 13.3 deaths
per 100,000 persons). Indeed, on January 10, 2018, in the hopes of combating opioid
addiction, Governor Tom Wolf took the unprecedented step of proclaiming the heroin and
opioid epidemic to be a statewide disaster emergency. See Press Release, Governor
Wolf Declares Heroin and Opioid Epidemic a Statewide Disaster Emergency (Jan. 10,
2018), https://www.governor.pa.gov/governor-wolf-declares-heroin-and-opioid-epidemic-
a-statewide-disaster-emergency/. The issue we address today emanates from this
epidemic.
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on the relevant statutory language, that a mother cannot be found to be a perpetrator of
child abuse against her newly born child for drug use while pregnant. We therefore
reverse the decision of the Superior Court and remand the matter for reinstatement of the
trial court’s order.
As all of the pertinent terms are defined by statute, we set forth the relevant
statutory definitions in order to provide context for our discussion of this case. The CPSL
defines “child abuse,” in relevant part, as “intentionally, knowingly or recklessly … (1)
[c]ausing bodily injury to a child through any recent act or failure to act,” or “(5) [c]reating
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). A “recent act” is “[a]ny act committed within two years of
the date of the report to the department or county agency.” Id., § 6303(a).
Not every person who harms or injures a child is a perpetrator of “child abuse”
under the CPSL. Instead, a “perpetrator” is defined as “[a] person who has committed
child abuse as defined in this section,” id., and is limited to the following individuals:
(i) A parent of the child.
(ii) A spouse or former spouse of the child’s parent.
(iii) A paramour or former paramour of the child’s parent.
(iv) A person 14 years of age or older and responsible for the
child’s welfare or having direct contact with children as an
employee of child-care services, a school or through a
program, activity or service.
(v) An individual 14 years of age or older who resides in the
same home as the child.
(vi) An individual 18 years of age or older who does not reside
in the same home as the child but is related within the third
degree of consanguinity or affinity by birth or adoption to the
child.
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(vii) An individual 18 years of age or older who engages a child
in severe forms of trafficking in persons or sex trafficking, as
those terms are defined under section 103 of the Trafficking
Victims Protection Act of 2000 (114 Stat. 1466, 22 U.S.C. §
7102).
Id., § 6306(a)(1). The CPSL defines a “child” as “[a]n individual under 18 years of age.”
Id., § 6303(a).
With these definitions in mind, we turn to the uncontested facts of this case. In
2016, A.A.R. (“Mother”), was released from incarceration, after which she relapsed into
drug addiction, using opioids (pain pills) and marijuana. Mother subsequently learned
that she was pregnant with L.J.B. (“Child”). She estimated that she was approximately
four months pregnant at that time. Thereafter, she sought treatment for her addiction,
first through a methadone maintenance program3 and then with subutex.4 Mother again
relapsed and in mid-January 2017 she tested positive for opiates, benzodiazepines and
marijuana, none of which were prescribed for her.
Mother gave birth to Child on January 27, 2017 at Williamsport Hospital. At the
time of Child’s birth, Mother tested positive for marijuana and subutex. By the third day
of life, Child began exhibiting symptoms of NAS, including tremors, excessive suck,
increased muscle tone and loose stools, which doctors treated with morphine. Mother
reportedly left Child in the hospital and did not consistently check on her or stay with her
3 Methadone is an opioid used to help dependent patients reduce their cravings and
symptoms of withdrawal. Clinical Guidelines for Withdrawal Management and Treatment
of Drug Dependence in Closed Settings, 6.1, Geneva: World Health Organization, 2009.
4 Subutex, also known as buprenorphine, is a prescription pill used to treat opioid
dependence. See
https://www.accessdata.fda.gov/drugsatfda_docs/label/2011/020732s006s007lbl.pdf
(last visited 12/19/2018).
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(despite the availability of a room for her to do so). Hospital personnel communicated all
of this information to the Clinton County Children and Youth Social Services Agency
(“CYS”).
On February 7, 2017, CYS sought and was granted emergency protective custody
of Child. The juvenile court held a shelter hearing on February 10, 2017 and ordered
Child to remain in CYS’ care. CYS then filed a dependency petition alleging that (1) Child
was “without proper parental care or control … as required by law” pursuant to section
6302(1) of the Juvenile Act (42 Pa.C.S. §§ 6301-6375), and (2) that Child was a victim of
child abuse by a perpetrator as defined by section 6303(b.1)(1) of the CPSL in that Mother
“caus[ed] bodily injury to a child through any recent act or failure to act.” Dependency
Petition, 2/13/2017, at 3, 5. The child abuse allegation was based on Child’s
hospitalization for nineteen days, during which Child “suffer[ed] from withdrawal due to
substances Mother ingested while Mother was pregnant with her.” Id. at 5. The juvenile
court continued the initial dependency hearing because of its concern that Mother and
J.W.B. (“Father”) did not receive proper notice. Prior to the rescheduled hearing, CYS
filed another dependency petition containing the same allegations of dependency and
child abuse, but adding information concerning visits between the parents and Child and
Mother’s admitted continued drug use.
On March 15, 2017, by agreement of the parties, the juvenile court adjudicated
Child dependent pursuant to section 6302(1) of the Juvenile Act. It deferred to a separate
proceeding the question of whether Mother’s drug use while pregnant constituted child
abuse, and ordered the parties to file memoranda of law for the court’s review.
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CYS filed its brief in support of a finding of child abuse on March 23, 2017, therein
averring that Mother’s conduct satisfied subsections (1) and (5) of the definition of “child
abuse” in that her “recent act” caused or created a reasonable likelihood of causing bodily
injury to Child. See 23 Pa.C.S. § 6303(b.1) (1), (5); supra, p. 3. Mother filed a
memorandum of law the following day, asserting that the CPSL does not protect a fetus
or unborn child, and thus Mother’s actions could not be deemed child abuse as a matter
of law.
The juvenile court held argument on May 9, 2017. After taking the matter under
advisement, it issued an opinion and order, agreeing with Mother that “the law does not
provide for [a] finding of abuse due to actions taken by an individual upon a fetus.”
Juvenile Court Opinion, 5/24/2017, at 4. It thus held that CYS “cannot establish child
abuse in this matter on the actions committed by Mother while [C]hild was a fetus.”
Juvenile Court Order, 5/24/2017, ¶ 1.
CYS appealed to the Superior Court, which reversed. In a unanimous opinion, the
court found, “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.” In re
L.B., 177 A.3d 308, 311 (Pa. Super. 2017). Although agreeing with Mother (and CYS)
that the definition of “child” in the CPSL does not include a fetus or unborn child, it found
that “Mother’s drug use is a ‘recent act or failure to act’ under 6303(b.1)(1) and (5),” and
that her conduct caused or was reasonably likely to cause injury to Child who, now born,
constituted a “child.” Id. It therefore held “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
[J-57-2018] - 6
reasonable likelihood of, bodily injury to a child after birth.” Id. at 309 (emphasis in
original).
Senior Judge Eugene B. Strassburger authored a concurring opinion, which the
majority author joined. Judge Strassburger joined the majority opinion, agreeing that “the
language of the statute” required that result. He wrote separately to express his concern
of “whether treating as child abusers women who are addicted to drugs results in safer
outcomes for children,” as this could cause a pregnant woman to avoid a hospital, fail to
seek prenatal care, or decide not to pursue treatment for her addiction. L.B., 177 A.3d at
313-14 (Strassburger, J., concurring). He also acknowledged that the majority’s holding
could easily be extended to other areas of a pregnant woman’s decision making (e.g.,
drinking coffee, traveling, eating sushi, or undergoing cancer treatment). Judge
Strassburger expressed doubt that the General Assembly intended for actions taken by
a woman prior to her child’s birth to constitute “child abuse,” but ultimately agreed with
the majority that this is the interpretation that the language of the statute required. Id. at
315.
Mother timely appealed to this Court, and we granted review of the following
issues:
(1) Does [the CPSL] allow a mother be found a perpetrator of
“child abuse” in the event she is a drug addict while her child
is a fetus[?]
(2) Is the intent of 23 Pa.C.S. § 6386 limited to providing
“protective services” to addicted newborns and their families
and not so expansive to permit alcoholic or addicted mothers
be found to have committed child abuse while carrying a child
in her womb[?]
In Interest of L.J.B., 183 A.3d 971, 972 (Pa. 2018) (per curiam).
[J-57-2018] - 7
This case presents questions of statutory interpretation for which our standard of
review is de novo. Commonwealth v. Fant, 146 A.3d 1254, 1260 (Pa. 2016). A court’s
role when interpreting a statute is to determine the intent of the General Assembly so as
to give it its intended effect. 1 Pa.C.S. § 1921(a). “In discerning that intent, the court first
resorts to the language of the statute itself. If the language of the statute clearly and
unambiguously sets forth the legislative intent, it is the duty of the court to apply that intent
to the case at hand and not look beyond the statutory language to ascertain its meaning.”
In re L.B.M., 161 A.3d 172, 179 (Pa. 2017); see also 1 Pa.C.S. § 1921(b) (“When the
words of a statute are clear and free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit.”).
Mother and her amici5 forward various arguments to this Court in support of
reversing the Superior Court’s decision. As we must, we begin by addressing the
arguments aimed at the plain language of the statute. Mother contends that pursuant to
the clear and unambiguous language of the CPSL, she did not commit “child abuse” while
she was pregnant because there was no “child,” and she therefore was not a
“perpetrator,” at the time she committed the act in question. See Mother’s Brief at 12-21;
23 Pa.C.S. § 6303(a), (b.1). See also ACLU and FMF Amici Brief at 6-8. She observes
5 Amicus briefs were filed in support of Mother by (1) American Civil Liberties Union of
Pennsylvania (“ACLU”) and Feminist Majority Foundation (“FMF”); (2) Frederick M.
Henretig, M.D., Hallam Hurt, M.D., Juvenile Law Center, KidsVoice, Philadelphia
Department of Human Services, and Support Center for Child Advocates; (3) The Drug
Policy Alliance, Families for Sensible Drug Policy; Avik Chatterjee, M.D., M.P.H., Keith
Humphreys, Ph.D., Hendrée Jones, Ph.D., Stephan R. Kandall, M.D., F.A.A.P., Mishka
Terplan, M.D., M.P.H., F.A.C.O.G, D.F.A.S.A.M., Bruce Trigg, M.D., Michael S. Wald,
J.D., and Tricia E. Wright, M.D., M.S.; and (4) National Advocates for Pregnant Women,
Community Legal Services of Philadelphia, and Experts in Maternal and Child Health,
Child Welfare, and Law.
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that section 6386 of the CPSL requires medical personnel to report to CYS when a child
is born, inter alia, experiencing withdrawal symptoms because of prenatal drug
exposure.6 She argues, however, that the CPSL neither requires nor permits a finding of
“child abuse” on this basis, again pointing to the pertinent definitions of section 6303, as
well as failed amendments to the statute that would have made her conduct “child abuse”
6 At the time the parties submitted their briefs in this matter, section 6386 was titled
“Mandatory reporting of children under one year of age,” and provided as follows:
(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.
(b) Safety or risk assessment.--The county agency shall perform a safety
assessment or risk assessment, or both, for the child and determine
whether child protective services or general protective services are
warranted.
(c) County agency duties.--Upon receipt of a report under this section, the
county agency for the county where the child resides shall:
(1) Immediately ensure the safety of the child and see the child
immediately if emergency protective custody is required or has been
or shall be taken or if it cannot be determined from the report whether
emergency protective custody is needed.
(2) Physically see the child within 48 hours of receipt of the report.
(3) Contact the parents of the child within 24 hours of receipt of the
report.
(4) Provide or arrange reasonable services to ensure the child is
provided with proper parental care, control and supervision.
23 Pa.C.S. § 6386 (amended effective Oct. 2, 2018).
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(but did not). See Mother’s Brief at 21-28; 23 Pa.C.S. § 6386. According to Mother, a
finding of child abuse based on harm caused by a mother’s ingestion of narcotics during
pregnancy also contradicts the stated purpose of the CPSL because it would do nothing
to protect children from “further abuse,” as this form of “abuse” is not repeatable against
the child. See Mother’s Brief at 29-30; 23 Pa.C.S. § 6302 (stating, in pertinent part, that
one of the purposes of the CPSL is “providing protection for children from further abuse”).
In response, CYS does not address Mother’s assertion that she cannot be a
“perpetrator” as defined by the CPSL. Instead, it points to section 6386 and its
contemplation that the county agency may institute “child protective services” following
its safety assessment after receiving a report from a healthcare provider that a child was
born affected by prenatal drug exposure. Because “child protective services” are only
instituted in cases of child abuse, CYS reasons that the General Assembly intended for
drug use while pregnant to constitute an act that could be deemed child abuse once the
child is born affected by his or her prenatal exposure to drugs. See CYS’ Brief at 5-9; 23
Pa.C.S. § 6303(a) (defining “child protective services” as “services and activities provided
by the department and each county agency for child abuse cases”). CYS further contends
that a finding of child abuse in this circumstance aligns with the legislative intent provided
in section 6302 of the CPSL because Mother “may well be pregnant again in the future.”
It asserts, without explanation, that a finding that Mother abused Child by using illegal
drugs while pregnant would somehow “protect these children as well.” CYS’ Brief at 12-
13.
As stated hereinabove, a “perpetrator” is “[a] person who has committed child
abuse” under the CPSL. 23 Pa.C.S. § 6303(a). Thus, at the time the individual committed
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the act that caused or was reasonably likely to have caused bodily injury to a child, he or
she must have been a “perpetrator,” as defined. The delineation of each individual who
is permissibly identified as “perpetrator” under the CPSL is based on his or her
relationship to a “child” – in Mother’s case, as “[a] parent of a child.” See id., § 6303(a)(1).
Reading the clear and unambiguous language of the relevant definitions together, a
person cannot have committed child abuse unless he or she was a perpetrator, and a
person cannot be a perpetrator unless there is a “child” at the time of the act. See 23
Pa.C.S. § 6303(a), (b.1).
In the case at bar, however, the act alleged (ingesting opioids) occurred when
Mother was pregnant. As the parties agree, and the Superior Court found, the CPSL’s
definition of a “child” does not include a fetus or an unborn child. By its plain language, a
“child” is a person who is under eighteen years of age. See 23 Pa.C.S. § 6303(a). Had
the General Assembly intended to include a fetus or unborn child under the protections
of the CPSL, it would have done so, just as it has in other statutory schemes. See, e.g.,
18 Pa.C.S. §§ 2601-2609 (Crimes Against the Unborn Child Act); 18 Pa.C.S. §§ 3201-
3220 (Abortion Control Act). “We are bound by the unambiguous language of the statute
and cannot read language into it that simply does not appear.” Commonwealth v.
Vasquez, 753 A.2d 807, 809 (Pa. 2000). As such, Mother cannot be found to have
committed child abuse against Child based on her illegal drug use while pregnant
because she was not a “perpetrator” at the time of the act.
The Superior Court never considered the definition of “perpetrator” when arriving
at its conclusion that Mother’s actions while pregnant could constitute “child abuse.”
Instead, it focused, almost exclusively, on the fact that Mother’s drug use occurred within
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two years of Child’s birth, which, in its view, constituted a “recent act” under the CPSL.
See In re L.B., 177 A.3d at 311. By reaching back to consider conduct while Mother was
pregnant, the Superior Court failed to account for the fact that at any time prior to the birth
of Child, Mother could not be a perpetrator of child abuse because a perpetrator must be
“the parent of a child.” 23 Pa.C.S. § 6306(a)(1)(i). The Superior Court thus created a
statutory relationship between a pregnant woman and a fetus that the CPSL does not
recognize. Language was available to the General Assembly to create a category of child
abuse to address this scenario, but it did not, and we must consider this omission as part
of the legislative intent.7 See Kmonk-Sullivan v. State Farm Mut. Auto. Ins. Co., 788 A.2d
955, 962 (Pa. 2001) (“As a matter of statutory interpretation, although one is admonished
to listen attentively to what a statute says; one must also listen attentively to what it does
not say.”). The plain language of the CPSL requires the existence of a child at the time
of the allegedly abusive act in order for the actor to be a “perpetrator” and for the act to
constitute “child abuse.” The fact that the actor, at a later date, becomes a person who
meets one of the statutorily-defined categories of “perpetrator” does not bring her earlier
actions – even if committed within two years of the child’s bodily injury – under the CPSL.8
7 In fact, we note that in 2011, Senator Patricia H. Vance proposed an amendment to
section 6303’s definition of “child abuse” to account for this very behavior by adding, “It
shall be considered child abuse if a child tests positive at birth for a controlled substance
as defined in section 2 of the act of April 14, 1972 (P.L. 233, No. 64), known as The
Controlled Substance, Drug, Device and Cosmetic Act, unless the child tests positive for
a controlled substance as a result of the mother's lawful intake of the substance as
prescribed.” S.B. 735, Printer’s No. 761, Reg. Sess. (Pa. 2011). The bill was referred to
the Senate Aging and Youth Committee on March 7, 2011, but it was never considered
or voted upon by the full Senate.
8 The status of a “perpetrator” must be acquired at the time of the abusive act to give
effect to the legislative intention in other contexts under the CPSL. For example: a
twelve-year-old boy intentionally breaks the arm and leg of his ten-year-old brother who
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We also find CYS’ reliance on section 6386 of the CPSL to be misplaced. As noted
hereinabove, the version of section 6386 in effect at the time of Child’s birth did not use
the phrase “child abuse,” nor did it mention, cross-reference, or purport to modify section
6303. See supra, note 6. Instead, it created a protocol to be fulfilled by healthcare
professionals when a baby was born experiencing withdrawal symptoms because of
prenatal drug exposure and corresponding responsibilities in the county agency. See 23
Pa.C.S. § 6386 (amended Oct. 2, 2018).
After performing a safety and/or risk assessment, the statute gave the county
agency an option if it found that the family required agency involvement: in cases
involving child abuse, to institute child protective services, or otherwise to institute general
lives in the same household. The twelve-year-old boy does not become a “perpetrator”
once he turns fourteen even though “[a]n individual 14 years of age or older who resides
in the same home as the child” is a “perpetrator” and, in our example, his act occurred
within two years. See 23 Pa.C.S. § 6303(a)(1)(v), (b.1)(1). In choosing the age of
fourteen to define a perpetrator in this subsection, the General Assembly made a policy
decision as to the appropriate age to trigger a finding that the actor committed child abuse.
The same type of policy decision was made by the General Assembly in requiring a
parent-child relationship and not a pregnant woman-unborn child relationship in section
6303(a)(1)(i).
The Dissent is of the view that a person need only be a perpetrator at the time the injury
to the child manifests, not at the time of the act that causes the injury. See Dissenting
Op. at 2. Respectfully, this ignores the aforementioned policy decision of the General
Assembly as to who is a perpetrator. Modifying the above example, take instead a twelve-
year-old boy who intentionally strikes his younger brother in the head with a baseball bat.
No injury is initially apparent, but two years later the younger brother develops a massive
brain hemorrhage that was caused by his brother’s act. Under the Dissent’s
interpretation, the now-fourteen-year-old is labeled a perpetrator for the act committed
when he was twelve. This, respectfully, is an absurd result given the General Assembly’s
clear definition of the term. The General Assembly made it abundantly clear that fourteen
is the age that triggers the designation of “perpetrator” under section 6303(a)(1)(v) CPSL.
It likewise made clear that a parent of a child, not a woman pregnant with an unborn child,
triggers the designation of “perpetrator” under the CPSL.
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protective services. See id., § 6386(b). Contrary to CYS’ argument, section 6386 cannot
be read to require that the birth of a child experiencing symptoms of NAS means that the
mother who gave birth is a perpetrator of child abuse. The definition of perpetrator in
section 6303 precludes the institution of child protective services based solely on a
newborn’s drug exposure in utero because, as discussed above, the General Assembly
did not intend for this to constitute child abuse. See Olson v. Kucenic, 133 A.2d 596, 598
(Pa. 1957) (“In interpreting a statute it must be construed as an integral part of the whole
structure affected and not as a separate matter having an independent meaning of its
own.”); Commonwealth v. Smith, 186 A.3d 397, 402 (Pa. 2018) (when discerning
legislative intent, “we do not read words in isolation, but with reference to the context in
which they appear”).9 We observe that safety and risk assessments require the county
agency to investigate both the subject child and any other children who live in the child’s
household. See 23 Pa.C.S. § 6368(c)(1) (providing that investigation of reports by the
county agency requires “[a] determination of the safety of or risk of harm to the child and
9 The General Assembly’s recent amendment to section 6386 resolves any ambiguity
that may have arisen from the language used in the prior version of section 6386 entirely.
In July 2018, the General Assembly completely overhauled section 6386, and the
amended version took effect on October 2, 2018. The amendment changes the title of
the statute to “Notification to department and development of plan of safe care for children
under one year of age.” It further adds subsection (a.1), which states, “The notification
by a health care provider to the department and any transmittal to the county agency by
the department shall not constitute a child abuse report,” and removes reference to the
county agency instituting “child protective services” based on notification from hospital
personnel that a baby was born affected by prenatal drug exposure. See 23 Pa.C.S. §
6386(a.1). A large portion of the statute is now dedicated to the “[d]evelopment of
interagency protocols and plan of safe care” to ensure that the child’s needs, as well as
those of the child’s parents and immediate caregivers, are appropriately met. See id., §
6386(b.1). This provision even contemplates that “[o]ngoing involvement of the county
agency after taking into consideration the individual needs of the child and the child’s
parents and immediate caregivers may not be required.” Id., § 6386(b.1)(2).
[J-57-2018] - 14
any other child if each child continues to remain in the existing home environment”).
Reading the provisions of the CPSL together and giving effect to every provision
contained in these statutes, as our Rules of Statutory Construction require, “child
protective services” could be instituted after notification that a child was born experiencing
symptoms of withdrawal if the county agency discovered, through its risk and/or safety
assessment, indicia of child abuse as it relates to other children in the home. See 1
Pa.C.S. § 1921(a) (“Every statute shall be construed, if possible, to give effect to all its
provisions.”).
Further, CYS’ argument that a finding of abuse under the circumstances of this
case somehow protects future children from abuse lacks any support in law or in fact. As
stated above, the CPSL was enacted because of the General Assembly’s finding that
“[a]bused children are in urgent need of an effective child protective service to prevent
them from suffering further injury and impairment.” Id., § 6302(a) (emphasis added).
Its purpose is to protect the abused child and other children from suffering further abuse
at the perpetrator’s hands. Id., § 6302(b). Labeling a woman as a perpetrator of child
abuse does not prevent her from becoming pregnant or provide any protection for a later
conceived child while in utero. It also does not ensure that the same woman will not use
illegal drugs if she does again become pregnant. Moreover, once labeled as a perpetrator
of child abuse, the likelihood that a new mother will be able to assimilate into the workforce
and participate in activities of the child’s life would be diminished. This would contravene
the laudatory goal of preserving family unity and a supportive environment for the child.
[J-57-2018] - 15
Mother’s act of ingesting opioids while pregnant did not constitute child abuse. We
therefore reverse the decision of the Superior Court and remand the matter for
reinstatement of the trial court’s order.
Justices Baer and Wecht join the opinion.
Chief Justice Saylor files a concurring opinion in which Justice Dougherty joins.
Justice Dougherty files a concurring opinion.
Justice Mundy files a dissenting opinion in which Justice Todd joins.
[J-57-2018] - 16