New Jersey Division of Youth and Family Services v. N.D., J.P. and A.J. in the Matter of E.D.

89 A.3d 609, 435 N.J. Super. 488

• Court: New Jersey Superior Court Appellate Division
• Decided: May 8, 2014
• Docket: A-2093-12
• Status: Published

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2093-12T2

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,1 APPROVED FOR PUBLICATION

Plaintiff-Respondent, May 8, 2014

v. APPELLATE DIVISION

N.D.,

Defendant-Appellant,

and

J.P. and A.J.,

Defendants. ____________________________________________

IN THE MATTER OF E.D.,

Minor. ____________________________________________

Submitted March 24, 2014 - Decided May 8, 2014

Before Judges Parrillo, Harris, and Guadagno.

1 The complaint was filed by the Division of Youth and Family Services, which was renamed the Division of Child Protection and Permanency in June 2012. L. 2012, c. 16, eff. June 29, 2012. For ease of reference, we will refer to the agency as the Division throughout this opinion. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-218-12.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kenneth Cabot, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor E.D. (Karen E. Lodeserto, Designated Counsel, on the brief).

The opinion of the court was delivered by

GUADAGNO, J.A.D.

In this appeal, we revisit the issue of in utero exposure

of a newborn to drugs and the quantum of proof necessary to

sustain a finding of abuse or neglect against the mother who

ingested drugs before the child was born. Defendant N.D.

(Natalie),2 the biological mother of E.D. (Edgar), appeals from

the April 5, 2012 order of the Family Part finding that she

abused or neglected her child pursuant to N.J.S.A.

9:6-8.21(c)(4). For the reasons that follow, we are compelled

to reverse and remand.

2 To protect the privacy of the minor child and for ease of reference, we use fictitious names for the parties.

2 A-2093-12T2 I.

On October 19, 2011, the Division received a referral from

Christ Hospital in Jersey City that the mother of a child

delivered at thirty-six weeks gestation tested positive for

cocaine after delivery.

Division caseworker Sandra Attal was dispatched to the

hospital and interviewed Natalie that day. Natalie told Attal

that she went to a friend's house a few days earlier and sniffed

two lines of cocaine. When Attal asked Natalie who the father

of the child was, she was unsure but identified two men as

possibilities. Upon further questioning, it became apparent to

Attal that Natalie lacked stable housing, although she planned

to stay with friends of her mother until she could find an

apartment. Natalie had no clothing, provisions, furniture, or

supplies for the child but suggested that relatives might

provide a crib. Natalie also made a vague reference that

someone would be coming from Virginia with "things" for the

child. Later that day, a hospital nurse informed Attal that

Edgar's urine screen was positive for cocaine.

Concerned with Natalie's unaddressed drug use, lack of

appropriate housing, and inability to provide for a newborn, the

Division sought custody of Edgar. After filing an order to show

cause, the Division was granted temporary custody of Edgar.

3 A-2093-12T2 Natalie was offered psychological and substance abuse

evaluations and supervised visitation.

Natalie failed to appear at the return on the order to show

cause or at a subsequent fact-finding hearing, although she was

represented by counsel throughout the proceedings.

At the fact-finding hearing, the Division called Attal who

testified that Edgar was removed "[d]ue to [Natalie's] admitted

cocaine use two days prior to delivery[,] . . . the fact that

[Natalie] did not have stable housing at that point, and the

child testing positive, which indicated that the child was at

risk." In addition to her use of cocaine prior to Edgar's

birth, Natalie admitted that she used cocaine around her

birthday on January 23, 2011. Natalie also told Attal that "she

was using marijuana and alcohol" during the first six months of

her pregnancy, but stopped once she found out she was pregnant.

Natalie explained to Attal that she used cocaine because she

felt "overwhelmed." The Division also introduced into evidence

medical records of Edgar and Natalie and various Division

reports.

At the conclusion of the hearing, the court determined that

the Division established, by a preponderance of the evidence,

that Natalie "abused or neglected" Edgar pursuant to N.J.S.A.

9:6-8.21(c)(4). The court reasoned:

4 A-2093-12T2 [I]n the case before this [c]ourt, . . . the use of the controlled illegal substance was two days before the baby was born. It was clearly after [Natalie] knew she was pregnant, and again, knew marijuana, alcohol would harm the baby. And one has to assume she knew there was a chance cocaine would harm the baby.

I think . . . every case is fact sensitive. Here, we're not talking about months before. We're talking about two days before. And I don't have any medical testimony before me. As I said, I can't prove the baby being born premature, or being a low weight was . . . directly caused by [Natalie] using cocaine. But certainly [Natalie] put this child at risk of harm by using a controlled dangerous substance intentionally knowing it could be harmful two days before the baby was born.

She also did not have appropriate housing for the child. And although the child tested positive for cocaine, there were no symptoms shown at that time, fortunately, very fortunately for the child.

And nobody's looking to punish [Natalie], but taking all of the facts that this [c]ourt has found together, [Edgar] was put at risk of serious physical harm by the mother's intentional ingestion of cocaine, or sniffing cocaine. Presumably not much more than a month before than the projected birth date, but as it happened, two days before the birth date.

. . . .

So, after reviewing the cases, I believe that based on these facts, and looking at the law which requires not just a child for purposes of finding abuse and neglect, to be physically harmed, but for there to be a substantial risk of harm. And

5 A-2093-12T2 I defy anyone to encourage anybody in their family while they're pregnant to use cocaine, knowing they're pregnant, because they think there's no substantial risk of harm to the child, particularly at that stage of pregnancy.

So, I do find that [the Division] has proven its case by a preponderance of the evidence . . . .

On November 26, 2012, the Division filed a complaint

seeking guardianship of Edgar and to terminate Natalie's

parental rights. The court dismissed the Title Nine litigation

on the same date. On June 4, 2013, Natalie's parental rights to

Edgar were terminated following a trial and the Division was

granted guardianship of the child. Natalie did not appear

during that proceeding and was not represented by counsel.

As a result of the Division's substantiation that Natalie

abused or neglected Edgar, her name was placed in the Central

Registry of child abusers in December 2011. See N.J.S.A. 9:6-

8.11. On January 10, 2013, Natalie filed a notice of appeal of

the trial court's finding that she abused or neglected Edgar.

On appeal, Natalie raises the following point:

THE TRIAL COURT'S DECISION THAT [NATALIE] ABUSED AND NEGLECTED [EDGAR], BASED SOLELY ON [EDGAR'S] POSITIVE COCAINE TEST AT BIRTH, WITHOUT ANY SHOWING THAT [EDGAR] WAS HARMED OR PLACED AT SUBSTANTIAL RISK OF HARM BECAUSE OF [NATALIE'S] USE OF COCAINE DURING PREGNANCY, MUST BE REVERSED IN LIGHT OF THE DECISION OF THE NEW JERSEY SUPREME COURT IN

6 A-2093-12T2 N.J. DIV. OF YOUTH AND FAMILY SERVS. V. A.L.[3]

II.

At the outset, we note that the Family Part decided this

matter prior to New Jersey Department of Children & Families v.

A.L., in which the Court discussed the proofs necessary to

sustain a finding of abuse and neglect against a mother whose

prepartum use of drugs resulted in a newborn testing positive

for those drugs. Id. at 8-9. The Court rejected the Division's

argument that the presence of cocaine metabolites in the

newborn's meconium, standing alone, established proof of

imminent danger or substantial risk of harm. Id. at 27-28. The

Division makes a similar argument here, which the precedent

established in A.L. compels us to reject.

The Family Part noted that Edgar tested positive for

cocaine at birth but there was no evidence that he was suffering

from withdrawal. The court also noted that Edgar had a low

birth weight, which required placement in an incubator.

Significant for present purposes, the court noted that the

Division presented no medical testimony linking either Edgar's

prematurity or low birth weight to Natalie's use of cocaine.

3 N.J. Dep't of Children & Families v. A.L., 213 N.J. 1 (2013).

7 A-2093-12T2 Nevertheless, the court determined that Natalie put Edgar

at risk by her use of cocaine. The judge was adamant, defying

anyone to suggest that drug use at that stage of pregnancy would

not be harmful to the child.

The judge's conclusion that a newborn testing positive for

drugs suffers per se harm is well supported by numerous medical

studies, and is the law in several states. See, e.g., Jane E.

Ellis et al., In Utero Exposure to Cocaine: A Review, 86 S. Med.

J. 725, 725-31 (1993); Charles R. Bauer et al., Acute Neonatal

Effects of Cocaine Exposure During Pregnancy, 159 Archives

Pediatrics & Adolescent Med. 824, 827 (2005); Rina D. Eiden et

al., Effects of Prenatal Cocaine Exposure on Infant Reactivity

and Regulation, 31 Neurotoxicol Teratol 60, 60-68 (2009); Lynn

T. Singer et al., Cognitive and Motor Outcomes of Cocaine-

Exposed Infants, 287 JAMA 1952, 1957 (2002).

Several states have enacted statutes that treat prenatal

exposure to illegal substances as per se child abuse. See,

e.g., Ark. Code Ann. § 12-18-103(14)(B)(i) (2013); Colo. Rev.

Stat. § 19-1-103(1)(a)(VII) (2013); 325 Ill. Comp. Stat. Ann.

5/3 (Lexis Nexis 2014); Minn. Stat. § 626.556, subd. 2(f)(6)

(2014); S.C. Code Ann. § 63-7-1660(F)(1)(a) (2013). Although

similar per se legislation has recently been introduced in New

8 A-2093-12T2 Jersey, see N.J. Assembly Bill No. 1137 (2014), our Legislature

has not acted on it.

In the absence of such legislation, the Division must hew

to the formula established in A.L. in cases where it seeks a

finding of abuse or neglect against a mother for exposing a

newborn to drugs in utero. In A.L., the Court determined that

"[p]roof that a child's mother frequently used cocaine or other

dangerous substances during pregnancy would be relevant to [the]

issue" of abuse and neglect. A.L., supra, 213 N.J. at 23.

However, the Court found that "not every instance of drug use by

a parent during pregnancy, standing alone, will substantiate a

finding of abuse and neglect in light of the specific language

of the statute." Ibid. Thus, "[t]he proper focus is on the

risk of substantial, imminent harm to the child, not on the past

use of drugs alone." Ibid. In reversing the trial court's

determination that A.L. abused or neglected her child, the Court

reasoned that

[o]n its own, the one entry [of a child's positive drug test] does not tell us whether the mother is an addict or used an illegal substance on a single occasion. The notation does not reveal the severity or extent of the mother's substance abuse or, most important in light of the statute, the degree of future harm posed to the child.

[Id. at 27.]

9 A-2093-12T2 Here, the judge's conclusion does not withstand scrutiny

under the standard established in A.L., where the Court found

that "[j]udges at the trial and appellate level cannot fill in

missing information on their own or take judicial notice of

harm." Id. at 28.

Natalie argues and the Division concedes that Edgar did not

display signs of withdrawal after birth. Although accurate,

this fact does little to illuminate the issue of whether Edgar

was harmed.

First, signs of withdrawal are only one indicator of harm.

See id. at 22 ("The Division can show that a newborn has been

impaired in a number of ways."). The A.L. Court provided a

partial list including, "evidence of respiratory distress,

cardiovascular or central nervous system complications, low

gestational age at birth, low birth weight, poor feeding

patterns, weight loss through an extended hospital stay,

lethargy, convulsions, or tremors." Id. at 23.

More importantly, unlike in utero exposure to opiates and

methadone, which may cause severe withdrawal symptoms, see,

e.g., N.J. Div. of Youth & Family Servs. v. Y.N., 431 N.J.

Super. 74, 80-81 (App. Div.), certif. granted, 216 N.J. 13

(2013), newborns exposed to cocaine in utero frequently do not

display any withdrawal symptoms. See American Academy of

10 A-2093-12T2 Pediatrics, Committee on Drugs, Neonatal Drug Withdrawal, 101

Pediatrics 1079, 1079 (1998) ("Stimulant-exposed neonates

(amphetamines, cocaine, or both) have been shown to be less

symptomatic than opiate-exposed infants[.]"); Mark L. Hudak &

Rosemarie C. Tan, The Committee on Drugs and The Committee on

Fetus and Newborn, Neonatal Drug Withdrawal, 129 Pediatrics

e540, e542 (2012) ("Several studies that used masked evaluators

found that cocaine-exposed infants had either no or minimal

withdrawal signs compared with cocaine-naïve infants[.]").

The absence of withdrawal symptoms should not be viewed as

an indication that no harm has been done, as the effects of

cocaine exposure frequently do not manifest until years later

when a child's cognitive functions begin to develop. See

Veronica H. Accornero et al., Impact of Prenatal Cocaine

Exposure on Attention and Response Inhibition as Assessed by

Continuous Performance Tests, 28 J. Developmental & Behav.

Pediatrics 195, 195–205 (2007) ("Results indicate cocaine-

associated increases in omission errors at ages 5 and 7 as well

as increases in response times for target tasks (i.e., slower

reaction times) and decreased consistency in performance at age

7."); John P. Ackerman et al., A Review of the Effects of

Prenatal Cocaine Exposure Among School-Aged Children, 125

Pediatrics 554, 563 (2010) (For school-aged children six years

11 A-2093-12T2 and older, "performance on tasks that assess sustained attention

and behavioral self-regulation seem to be compromised by

[prenatal cocaine exposure]."); Henrietta S. Bada et al., Impact

of Prenatal Cocaine Exposure on Child Behavior Problems Through

School Age, 119 Pediatrics e348, e348 (2007) ("High prenatal

cocaine exposure was associated with the trajectory of

internalizing, externalizing, and total behavior problems [for

children ages three to seven]."); Barbara L. Thompson et al.,

Prenatal Exposure To Drugs: Effects on Brain Development and

Implications for Policy and Education, 10 Nature Reviews

Neuroscience 303, 303–12 (2009) ("The recreational use of

cocaine during pregnancy results in a subtle, though dominant

developmental phenotype that resembles attention deficit

disorder (ADHD). Detailed studies have demonstrated that

prenatal cocaine exposure can have long-lasting negative effects

on cognitive and attention systems, mediated via regions such as

the prefrontal cortex, and other higher-order cortical areas

that express dopamine receptors and receive rich dopaminergic

projections from the midbrain. Recent data also suggest that

there is increased likelihood that children exposed to cocaine

prenatally will require special needs programs[.]").

The A.L. Court noted that in instances like these, where

"the evidence presented does not demonstrate actual or imminent

12 A-2093-12T2 harm, expert testimony may be helpful." A.L., supra, 213 N.J.

at 28.

In her brief, Natalie correctly notes that

There were no medical experts or hospital personnel to interpret the positive urine test, the level of cocaine in [Edgar's] system, the effect such cocaine had or would have on him, and whether such cocaine would cause [Edgar] any harm in the future.

This is precisely the type of case that would have benefitted

from expert testimony.

In this regard, we note that Edgar's premature delivery and

low birth weight might be interpreted by a qualified expert as

being related to Natalie's ingestion of cocaine. Natalie does

not dispute the Division's assertion that Edgar was born

prematurely, with low birth weight placing him in the tenth

percentile and body length placing him below the third

percentile. The judge specifically noted the absence of proof

linking Edgar's premature delivery and low birth weight to

Natalie's use of cocaine.

In addition, Edgar suffered a dramatic weight loss a few

days after birth and had difficulty maintaining his body

temperature. Low birth weight and premature delivery have been

associated with in utero cocaine exposure. See Arden Handler et

al., Cocaine Use During Pregnancy: Prenatal Outcomes, 133 Am J.

Epidemiology 818, 818-25 (1991) (discussing elevated risks of

13 A-2093-12T2 low birth weight and prematurity in children of women who used

cocaine during pregnancy compared to women who did not); Bauer,

supra, at 824 ("Cocaine-exposed infants were about 1.2 weeks

younger, weighed 536 g less, measured 2.6 cm shorter, and had

head circumference 1.5 cm smaller than nonexposed infants[.]");

Singer, supra, at 1956 ("Cocaine-exposed infants had a lower

gestational age, birth weight, head circumference, and length

than unexposed infants. In the exposed group, there were more

infants who were preterm, had a low birth weight, and were small

for gestational age.").

Although expert testimony is not required in every abuse

and neglect action, A.L., supra, 213 N.J. at 29, on the record

before us, there can be no causal connection between Natalie's

cocaine use and short- or long-term effects on Edgar's health

without such testimony. The trial court was not free to make a

finding of abuse or neglect on the basis of its own unsupported

opinion or by taking notice of "the great weight of medical

evidence" supporting its conclusion. See id. at 23, 29.

We realize that the Family Part heard this case before A.L.

was decided and did not have the benefit of the Court's guidance

on these critical matters. For that reason, we have decided to

remand this matter with direction to reopen the hearing. All

parties will be permitted to present additional evidence,

14 A-2093-12T2 including medical and/or expert testimony, as to whether Edgar

suffered long- or short-term harm as the result of his exposure

to cocaine ingested by Natalie prior to his birth.

Reversed and remanded. We do not retain jurisdiction.

15 A-2093-12T2