New Jersey Division of Child Protection and Permanency

133 A.3d 643, 444 N.J. Super. 325

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3662-13T3

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, APPROVED FOR PUBLICATION

February 25, 2016 Plaintiff-Respondent, APPELLATE DIVISION v.

K.M.,

Defendant-Appellant. ______________________________

IN THE MATTER OF G.G., a minor. ______________________________

Argued November 12, 2015 - Decided February 25, 2016

Before Judges Fuentes, Koblitz and Gilson.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-65-14.

Clara S. Licata, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Licata, on the brief).

James F. LaFargue, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Mr. LaFargue, on the brief).

Danielle Ruiz, Designated Counsel, argued the cause for minor G.G. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Ruiz, on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

Defendant K.M.1 is the biological mother of G.G., a boy born

in April 2013. She appeals from the order entered by the Family

Part finding she abused or neglected G.G. within the meaning of

N.J.S.A. 9:6-8.21(c)(4)(a), after the child was born manifesting

signs of physical distress caused by withdrawal from opioid

addiction. We affirm.

G.G. was born at St. Peter's University Hospital in New

Brunswick weighing 9 pounds and 3.6 ounces, and showing no

apparent signs of distress or abnormalities. However, during

the first three days after his birth, the medical staff noted

the infant was exhibiting symptoms consistent with opioid

withdrawal. G.G. was thereafter admitted to the neonatal

intensive care unit (NICU) for respiratory distress. The

hospital staff contacted the Division of Child Protection and

Permanency (Division), which dispatched a caseworker to meet and

discuss the situation with defendant.

1 We use initials and fictitious names to protect the confidentiality of the participants in these proceedings pursuant to Rule 1:38-3(d).

2 A-3662-13T3 Upon arriving at the hospital, the Division caseworker saw

G.G. at the NICU before meeting with defendant. The caseworker

noted G.G. was "jerking his arm up above his head." By this

time, the nursing staff was actively monitoring the infant for

withdrawal symptoms. Defendant admitted to the caseworker she

was addicted to oxycodone, sold as Roxicodone or "Roxis," prior

to her pregnancy.2 Defendant also admitted to illicitly

acquiring Suboxone,3 an opioid analog prescribed by physicians to

treat the physical symptoms of opioid withdrawal. She told the

caseworker she ingested Suboxone two to three times per week and

smoked marijuana during her pregnancy.

The NICU medical staff began treating G.G. with morphine

after learning defendant's history of opioid addiction,

including her efforts to self-medicate the symptoms of

withdrawal by using Suboxone during her pregnancy. G.G. spent a

total of twenty-two days in the hospital to recover from the

withdrawal symptoms. He was released to defendant and his

biological father in late May 2013.

2 K.M. testified the opioid-based prescription pain medication she took was not prescribed to her by a physician. She took the medication a physician prescribed for her friend to alleviate the pain the friend experienced from a knee injury. 3 Suboxone is a controlled dangerous substance within the meaning of N.J.S.A. 2C:35-2, and can be acquired legally in a pharmacy only with a prescription from a licensed physician.

3 A-3662-13T3 On July 9, 2013, the Division filed an Order to Show Cause

(OTSC) and a Verified Complaint against defendant in the Family

Part pursuant to N.J.S.A. 30:4C-12, seeking legal custody of

G.G. and responsibility for his physical welfare and

supervision. That same day the Division amended the complaint

to charge defendant with abuse or neglect of G.G. under N.J.S.A.

9:6-8.21(c)(4). The Family Part granted the Division's request

and scheduled the return date for the OTSC for August 12, 2013.

By the time the case returned to the court, defendant had

completed substance abuse counseling and had attended supervised

visitation with G.G., who was by then cleared of any medical

issues related to his opioid withdrawal. The court conducted

fact-finding hearings on December 9, 2013, January 29, 2014,

February 18, 2014, and February 24, 2014. The evidence

presented at these hearings established that defendant became

addicted to oxycodone approximately four years before she gave

birth to G.G. in 2013. She began taking her friend’s

prescription pain medication to alleviate the pain caused by a

sprained ankle she suffered while playing college sports. She

continue to ingest this medication in pill form multiple times a

week until she realized she was pregnant in October 2012.

While pregnant, defendant came to the realization that

continuing to abuse these drugs would be detrimental to the

4 A-3662-13T3 welfare of the fetus. Based on the research she conducted

online, K.M. discovered that abruptly stopping the use of this

opioid analgesic could cause a miscarriage. She also learned

about the opioid analog Suboxone, that, according to defendant,

physicians prescribed to pregnant women to help with withdrawal

symptoms. However, instead of consulting a physician to confirm

Suboxone was safe to take while pregnant and thereafter obtain a

prescription for the medication, defendant again decided to

self-medicate by obtaining the drug from a friend. She

thereafter continued to use Suboxone throughout her pregnancy

and made the conscious decision not to disclose she was taking

this medication to her obstetrician.

Defendant called Dr. Loretta P. Finnegan as an expert

witness. The Family Part admitted Dr. Finnegan as an expert in

"pediatrics and with a specialty in the area of neonatology and

specifically prenatal addiction and neonatal abstinence

syndrome." Based on a 2010 study in the New England Journal of

Medicine which "compared the effects methadone versus

Buprenorphine" (the generic term for Suboxone),4 Dr. Finnegan

testified the study found "both medications were appropriate for

pregnant women."

4 Hendrée E. Jones et al., Neonatal Abstinence Syndrome After Methadone or Buprenorphine Exposure, 363 New Eng. J. of Med. 2320 (2010).

5 A-3662-13T3 According to Dr. Finnegan, babies who are born after their

mothers have ingested Suboxone during pregnancy are closely

monitored every four hours after birth to determine the extent

of any withdrawals symptoms. Medical staff assess the severity

of the withdrawals using a twenty-one point score. The visual

symptoms include jerking, sneezing, loose stools, sucking,

hypertonia and tremors. Because defendant did not disclose she

took Suboxone to the medical staff who attended to her during

G.G.'s delivery, there was a three-day delay in the start of

treatment to alleviate the baby's withdrawal symptoms.

Dr. Finnegan testified that Suboxone is an appropriate

medication to administer to pregnant women withdrawing from

opioids. In her report, Dr. Finnegan opined that G.G.'s

withdrawal symptoms could have been exacerbated by the

hospital's course of treatment. Dr. Finnegan also stated in her

report that while "urine toxicology studies of G.G. did not

verify opioids were detected . . . one can deduce that there was

a passive transfer of opioids from the mother's blood

circulation to her fetus during pregnancy." When asked if G.G.

suffered from withdrawal from the drugs he was exposed to in

utero, Dr. Finnegan responded: "Yes."

Dr. Finnegan equated the symptoms G.G. experienced with

neonatal abstinence syndrome (NAS). The fact that the infant's

6 A-3662-13T3 symptoms subsided when the medical staff began morphine

treatment establishes G.G. was suffering from NAS. When asked

to opine whether G.G. suffered harm after birth, Dr. Finnegan

responded:

If you take harm in the strict sense of the definition, it would mean that this baby had some physical problem. The baby obviously had a withdrawal. So, in the strict sense of the word, you would say yes. However, withdrawal is basically a side effect of medication. The mother took medication that's legally used in the medical community for the treatment of opioid addiction.

Based on these uncontested facts, the Family Part judge

concluded defendant had abused or neglected G.G. within the

meaning of N.J.S.A. 9:6-8.21(c)(4)(a). The judge stated her

reasons in an oral opinion delivered from the bench at the

conclusion of the fact-finding hearing.

[Defendant] was addicted to Roxis and found she was pregnant. She did not go to a doctor at that point. She did research online on Suboxone so she wouldn't have withdrawals. I never heard it anywhere, other then [sic] Dr. Finnigan's report, that that was for her baby. In fact I got the impression even from her it was for her own withdrawal. She took it a couple of times a week and indicated she never got a prescription but she got it [from] friends. We don't know how much she was taking. We don't know what type - - if a drug is bought off the street, we certainly don't know the potency of it. We don't know if it's been laced with something else, and basically that was a very big risk for mom to take. We have no information, we just know that

7 A-3662-13T3 she bought it off the streets or her friends.

She never sought assistance from a pain management doctor. She never told her prenatal doctor. Never told the father of the child, just continued to take the drug during her entire pregnancy. And the fact that she did not believe it was a drug, I don't find credible. She knew it was illegal to take this, and frankly she indicated she was scared that they would take her baby. She continued to do without being monitored by a doctor throughout her pregnancy, and I find that clearly is a failure to provide a minimum degree of care. . . . Also I think it's important to note, that even when she was in the hospital and questioned by the caseworker she continued to say that she was not taking any drugs or using any drugs.

In this appeal, defendant argues the record does not show

G.G. suffered actual physical, mental, or emotional harm due to

defendant's ingestion of Suboxone during her pregnancy. We

agree with defendant in this limited respect. However, the

question is not whether defendant ingested Suboxone during her

pregnancy or even that she did so clandestinely, without

disclosing it to her obstetrician. Defendant caused harm to

G.G. when she waited three days after delivering G.G. to

disclose to the neonatal staff that she had taken Suboxone.

Her failure to act in a more timely manner caused her infant son

needless suffering.

8 A-3662-13T3 The analysis in an abuse or neglect case should "focus on

the harm to the child and whether that harm could have been

prevented had the guardian performed some act to remedy the

situation or remove the danger." G.S. v. Dep't of Human Servs.,

157 N.J. 161, 182 (1999). Under N.J.S.A. 9:6-8.21(c)(4) an

"abused or neglected child" is

a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so[.]

[(Emphasis added).]

In Department of Children & Families v. T.B., 207 N.J. 294,

306 (2011) (quoting N.J.S.A. 9:6-8.21(c)(4)), the Supreme Court

held that in order to find abuse or neglect the parent must fail

"to exercise a minimum degree of care." The Court has defined

"minimum degree of care" as denoting

a lesser burden on the actor than a duty of ordinary care. If a lesser measure of care is required of an actor, then something more than ordinary negligence is required to hold the actor liable. The most logical higher measure of neglect is found in conduct that is grossly negligent because it is willful or wanton. Therefore, we believe the phrase "minimum degree of care" refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.

9 A-3662-13T3 [G.S., supra, 157 N.J. at 178 (quoting N.J.S.A. 9:6-8.21(c)(4)).]

In New Jersey Division of Child Protection & Permanency v.

Y.N., 220 N.J. 165, 183, 187 (2014), the Supreme Court reversed

this court's decision finding a mother "violated the abuse and

neglect statute solely because her newborn suffered neonatal

abstinence syndrome as a result of her participation in a

medically prescribed methadone maintenance treatment program."

In sharp contrast to the uncontested facts here, the defendant

in Y.N. "followed the advice of a medical professional and later

entered into a methadone maintenance program." Id. at 184.

Mindful of the public policy implications of discouraging

opioid addicted pregnant women from seeking informed medical

advice if they were held liable for abuse or neglect under Title

9 after their children are born, the Court in Y.N. held:

N.J.S.A. 9:6-8.21(c)(4)(b) does not require a finding of abuse or neglect when an addicted woman, who learns that she is pregnant, seeks timely professional treatment for her addiction that will improve the outcome for her unborn child. We hold that, absent exceptional circumstances, a finding of abuse or neglect cannot be sustained based solely on a newborn's enduring methadone withdrawal following a mother's timely participation in a bona fide treatment program prescribed by a licensed healthcare professional to whom she has made full disclosure.

[Id. at 185-86 (emphasis added).]

10 A-3662-13T3 Here, we are satisfied defendant's conduct rises to the

level of grossly negligent as defined in G.S., supra, 157 N.J.

at 178, and as a consequence, we find that she committed an act

of neglect against G.G. under N.J.S.A. 9:6-8.21(c)(4)(a).

Although we recognize a mother's physical and emotional stress

after childbirth, see A.H.W. v. G.H.B., 339 N.J. Super. 495, 504

(Ch. Div. 2000), defendant was obligated to disclose the known

necessary information to avoid endangering the health of her

newborn child. Defendant willfully withheld the timely

disclosure of key medical information about medication she was

taking during her pregnancy that could have prevented three days

of needless suffering to her infant son. We emphasize that

defendant's decision to illicitly obtain Suboxone and thereafter

ingest the medication to treat her withdrawal symptoms without

consulting a physician do not bear any resemblance to the

prudent, medically sound course of action employed by the

defendant in Y.N. See Y.N., supra, 220 N.J. at 169-72, 184.

At this point, we must pause to make clear our disagreement

with the trial court's analysis in one respect. The Family

Part's analysis focused on defendant's conduct during her

pregnancy. Specifically, the court noted defendant "never

sought assistance from a pain management doctor. She never told

her prenatal doctor. Never told the father of the child, just

11 A-3662-13T3 continued to take the drug during her entire pregnancy." There

is no evidence in the record that this aspect of defendant's

conduct harmed G.G. in any way.

Defendant neglected her infant son within the meaning of

N.J.S.A. 9:6-8.21(c)(4)(a) when she failed to disclose in a

timely manner her use of Suboxone to the neonatal staff after

G.G. was born. If defendant had disclosed this information in a

timely fashion, the neonatal staff could have begun monitoring

G.G.'s condition in the manner consistent with Dr. Finnegan's

testimony and intervene with morphine treatment or other forms

of pharmacological treatment as the child's needs warranted.

The three days G.G. suffered with withdrawal symptoms could have

been avoided.

However, our disagreement with the trial court's analysis

in this respect is legally inconsequential. It is a long

settled principle of appellate jurisprudence that "an appeal is

taken from a trial court's ruling rather than reasons for the

ruling." State v. Adubato, 420 N.J. Super. 167, 176 (App. Div.

2011), certif. denied, 209 N.J. 430 (2012). We may affirm the

final judgment of the trial court "on grounds other than those

upon which the trial court relied." Ibid.

Affirmed.

12 A-3662-13T3