In a recent superior court case (85 Pa. Super. 2014), the court was faced
with the question of whether a mother committed child abuse upon her daughter.
The facts of the case are awful. The young child suffered a deep cut to
the base of his penis, a bruise on each cheek, severe diaper rash, a yeast
infection and general dirtiness. The child's mother voluntary relinquished
her parental rights to the child. So, the only remaining issue was mother's
challenge to the juvenile court’s specific determination that mother
was the perpetrator of child abuse, as those terms are defined under the
Child Protective Services Law, 23 Pa.C.S.A. §§ 6301- 6386. Specifically,
declaring “[t]he [juvenile c]ourt hereby finds that [Child] is a
victim of child abuse as defined at 23 [Pa.C.S.A. §] 6303, in that
as to [M]other”).
The first question was whether the case was moot, since mother voluntarily
relinquished her parental rights. But the court found the case was not
moot because being labeled a child abuser has long-lasting and significant
effects, such as exclusion from certain jobs, reporting requirement and
a statewide abuse registry.
In order to be found a child abuser, the evidence must meet the high standard
of "clear and convincing" evidence that an action (or inaction)
was non-accidental and "serious". "Serious" abuse
causes severe pain or significantly impairs physical functioning. Once
intentional and serious abuse is found, the parent or caretaker is assumed
to have caused the abuse, absent evidence to the contrary.
The Court found that the cheek bruises, diaper rash, yeast infection and
dirtiness did not rise to the level of a "serious" injury (though
they would certainly be relevant for custody). The penile cut was found
to be both serious and non-accidental.
The Court noted that the caretaker suspected of abuse must have been responsible
for the supervision and control of the child at the time of abuse. In
this case, child protective services found that mother's sister (the
child's aunt) caused the penile injury while the child was in the
aunt's care. Moreover, there was no evidence that mother knew the
aunt was an abuse risk. Accordingly, the Pennsylvania Superior Court found
that, while mother did not provide proper care to the child, mother was
not an "abuser" of the child, under Pennsylvania law.
This was a surprising result because child abuse is one of the few acts
in our society that remains universally abhorrent and nobody gets into
trouble for being "too tough" on child abuse. In fact, the determination
of the court opened it up to an assortment of political advertisements
that one can imagine, during the judge's next retention election.
So, regardless of the merits, the court is to be commended for putting
the law before political expediency. Fortunately, the child is no longer
with mother. Improper care can terminate custody (or parental rights)
but is not necessarily "child abuse".