Legal test to label someone as a child abuser.

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".