New Jersey Division of Youth and Family Services v. N.D., J.P. and A.J. in the Matter of E.D. , 435 N.J. Super. 488 ( 2014 )

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NOT FOR PUBLICATION WITHOUT THE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
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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.
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