dissenting. Appellant’s sole proposition of law asks this court to decide that R.C. 2151.031(D) excludes unborn fetuses from the definition of “abused child.” But as the majority notes, even if fetuses were excluded from the definition, a reasonable construction of the statute could support the adjudication of a newborn as an abused child for injuries inflicted prebirth. Division (D) does not require that the parents inflict injury after birth. It merely requires that the child suffer injury, due to an act by the parents, that harms or threatens to harm the child’s health or welfare. The statute focuses on the status of the child — not the timing of the injury’s infliction. Despite my agreement with the majority on this point, I cannot join today’s opinion and syllabus.
The syllabus equates a positive drug screen, in every case, with “injury that harms or threatens to harm” a newborn. The majority’s per se rule assumes that harm to a child’s health or welfare — or the threat of such harm — necessarily follows from in útero exposure to an illegal drug. The magistrate and trial court likewise assumed that “[a] newborn who tests positive for an illegal narcotic is abuse[d] per se.” Rather than determining by clear and convincing evidence that Lorenzo’s exposure to cocaine caused or could have caused him harm, the court below (like the majority today) apparently proceeded from a generally accepted view that cocaine is harmful to its users.
A positive result on a newborn’s drug screen is probative evidence of in útero exposure to illegal drugs. Whether a newborn’s in útero exposure to an illegal substance actually harms or threatens to harm the child is, however, a separate question that can only be answered by considering appropriate medical evidence. Such consideration is lacking in this case.
Though there was evidence that Lorenzo was “jittery” soon after birth, the record contains no medical testimony linking this symptom to the positive drug screen. The agency’s only witness at the adjudicatory hearing was a social worker who observed Lorenzo shake briefly twice during a five- to fifteen-minute period. The day after birth, Lorenzo’s physician noted “not much jittering” and decided that he would “just observe.” The following day, Lorenzo’s physician indicated that Lorenzo was “doing fine — no jitteriness.” Three days after birth, Lorenzo was discharged. Though Lorenzo’s physician noted a “positive drug screen” on the discharge summary, he identified no symptoms of injury that *203harmed or threatened to harm the child. Nor did the physician specify the need for any medication or special care for Lorenzo.
I would remand this cause for a determination of whether Lorenzo’s exposure to cocaine either harmed or threatened to harm him, as the plain language of R.C. 2151.031(D) requires. Accordingly, I respectfully dissent.
Pfeifer, J., concurs in the foregoing dissenting opinion.