Pregnancy and Alcohol

Legal Significance for Child Abuse/Child Neglect

Laws that clarify the admissibility of evidence in child welfare proceedings regarding prenatal alcohol exposure as it pertains to allegations of child abuse, child neglect, child deprivation, or child dependence, or proceedings seeking termination of parental rights.

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About This Policy: Legal Significance for Child Abuse/Child Neglect

(Period Covered: 1/1/2003 through 1/1/2019)

This policy topic covers laws that clarify the admissibility of evidence in child welfare proceedings regarding prenatal alcohol exposure as it pertains to allegations of child abuse, child neglect, child deprivation, or child dependence, or proceedings seeking termination of parental rights.

Scientific research has established that alcohol consumption during pregnancy is associated with adverse health consequences. Fetal Alcohol Spectrum Disorders (FASD) is the term used to describe the range of birth defects caused by maternal alcohol consumption during pregnancy. FASD are considered the most common nonhereditary cause of mental retardation.  Included in Fetal Alcohol Spectrum Disorders is the diagnosis often referred to as Fetal Alcohol Syndrome (FAS), which is the most severe form of FASD. It is characterized by facial defects, growth deficiencies, and central nervous system dysfunction. Also included in FASD are other types of alcohol-induced mental impairments that are just as serious, if not more so, than in children with FAS. The term "alcohol-related neurodevelopmental disorder" (ARND) has been developed to describe such impairments. Prenatally exposed children can also have other alcohol-related physical abnormalities of the skeleton and certain organ systems; these are known as alcohol-related birth defects (ARBD). (National Institute on Alcohol Abuse and Alcoholism, June 2000; Warren and Foudin, 2001; SAMHSA, 2004).

The legal significance of a woman's conduct prior to birth of a child and of damage caused in utero varies considerably across jurisdictions. Some States have adopted statutes and/or regulations that clarify the rules for evidence of prenatal alcohol exposure in child welfare proceedings (e.g., those alleging child abuse, child neglect, child deprivation, or child dependence, or concerning termination of parental rights). This section of APIS addresses these statutes and regulations.

Explanatory Notes and Limitations Specifically Applicable to Pregnancy and Alcohol:  Legal Significance for Child Abuse/Child Neglect

  1. APIS collects legal provisions that either specifically refer to FASD or issues related to prenatal alcohol exposure or refer to a condition that reasonably may be interpreted as referring to FASD or prenatal alcohol exposure (e.g., "prenatal substance abuse," "prenatal legal drug abuse") or to a condition that reasonably may be interpreted as referring to alcohol abuse (e.g., "substance abuse," "use of legal drugs," "addictive drug," "drug of abuse").
  2. APIS does not collect provisions that refer only to "controlled substances" or those that exclude alcohol.
  3. If a State law provides for a report or notification that could lead to an investigation by the State’s child protection or child welfare agency resulting in a child welfare proceeding, the law is collected for purposes of this policy topic.
  4. If a State law can reasonably be interpreted as applying to the mother’s conduct during pregnancy, the law is collected for this policy topic (for this purpose, references to FASD or terms such as “infant”, “newborn,” or “child born affected by” are sufficient). If the law only relates to treatment for the mother/parent/caregiver, or the child, and the context does not apply to the mother’s conduct during pregnancy, the law is not collected.

Explanatory Notes and Limitations Applicable to All APIS Policy Topics

  1. State law may permit local jurisdictions to impose requirements in addition to those mandated by State law. Alternatively, State law may prohibit local legislation on this topic, thereby preempting local powers. For more information on the preemption doctrine, see the About Alcohol Policy page. APIS does not document policies established by local governments.
  2. In addition to statutes and regulations, judicial decisions (case law) also may affect alcohol-related policies. APIS does not review case law except to determine whether judicial decisions have invalidated statutes or regulations that would otherwise affect the data presented in the comparison tables.
  3. APIS reviews published administrative regulations. However, administrative decisions or directives that are not included in a State's published regulatory codes may have an impact on implementation. This possibility has not been addressed by the APIS research.
  4. Statutes and regulations cited in tables on this policy topic may have been amended or repealed after the specific date or time period specified by the site user's search criteria.
  5. Policy changes in APIS are presented as of the date these changes take effect as law.  Users should be aware that in some situations there may be a delay between the effective date of a law and the time a corresponding policy change occurs in practice.  Because APIS research is based entirely on primary legal source materials (codified statutes and regulations and, on rare occasions, published court opinions), APIS is unable to accurately determine when policy changes may appear in practice.
  6. If a conflict exists between a statute and a regulation addressing the same legal issue, APIS coding relies on the statute.
  7. A comprehensive understanding of the data presented in the comparison tables for this policy topic requires examination of the applicable Row Notes and Jurisdiction Notes, which can be accessed from the body of the table via links in the Jurisdiction column.

(Policies in effect on: 1/1/2019)

On December 20, 2010, the President signed a law reauthorizing and amending the Child Abuse Prevention and Treatment Act (CAPTA), codified at 42 U.S.C. ch. 67, subchapters I, III, V. This law, as amended by the Comprehensive Addiction and Recovery Act of 2016 (CARA) (PL 114-198, July 22, 2016, 130 Stat 695), provides Federal grant money to improve State child protection services. Under the law, States that seek CAPTA funding are required to submit a plan that contains requirements relating to health care workers’ duty to notify child welfare agencies of infants born with Fetal Alcohol Spectrum Disorders for purposes of referral for assessment and/or treatment. Under the law, the notifications required in these State plans must not be construed to either establish a definition under Federal law of what constitutes child abuse or neglect, or require prosecution for any illegal action.

Relevant portions of this law appear below.

 

FEDERAL CITATIONS AND RELEVANT TEXT EXCERPTS

 

42 U.S.C. § 5106a
United States Code
Title 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 67 - CHILD ABUSE PREVENTION AND TREATMENT AND ADOPTION REFORM
SUBCHAPTER I - GENERAL PROGRAM
§ 5106a. Grants to States for child abuse or neglect prevention and treatment programs

* * *

(b) Eligibility requirements

* * *

(2) Contents

A State plan * * * shall contain a description of the activities that the State will carry out using amounts received under the grant to achieve the objectives of this subchapter, including--

* * *

(B) an assurance in the form of a certification by the Governor of the State that the State has in effect and is enforcing a State law, or has in effect and is operating a statewide program, relating to child abuse and neglect that includes--

* * *

(ii) policies and procedures (including appropriate referrals to child protection service systems and for other appropriate services) to address the needs of infants born with and identified as being affected by substance abuse or withdrawal symptoms resulting from prenatal drug exposure, or a Fetal Alcohol Spectrum Disorder, including a requirement that health care providers involved in the delivery or care of such infants notify the child protective services system of the occurrence of such condition in such infants, except that such notification shall not be construed to--

(I) establish a definition under Federal law of what constitutes child abuse or neglect; or

(II) require prosecution for any illegal action;

* * *

(iv) procedures for the immediate screening, risk and safety assessment, and prompt investigation of such reports; * * *

* * *

 

 

Source for all citations on this page: www.govinfo.gov/, a service of the U.S. Government Publishing Office (GPO). Excerpts from the United States Code are current as of 2018. Excerpts from the Code of Federal Regulations are current as of 2019. Excerpts from Public Laws of Congress are current as of the year of enactment. The GPO’s Public Domain & Copyright Notice is available at https://www.govinfo.gov/about/policies#copyright .

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