DCPP VS. Z.S. AND G.N.IN THE MATTER OF Z.N. (FN-09-0463-15, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0547-16T1
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
Z.S.,
Defendant-Appellant,
and
G.N.,
Defendant.
________________________________
IN THE MATTER OF Z.N.,
A Minor.
________________________________
Submitted November 2, 2017 – Decided November 13, 2017
Before Judges Haas and Rothstadt.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-0463-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Albert M. Afonso, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Julie
B. Colonna, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Lisa M. Black,
Designated Counsel, on the brief).
PER CURIAM
Defendant Z.S.1 appeals from the Family Part's November 13,
2015 order, following a fact-finding hearing, determining that
defendant abused or neglected her infant daughter, Z.N. (Zoe).
The trial judge found that defendant caused actual harm to her
child as a result of her drug use during pregnancy, which caused
the baby to be born with severe withdrawal symptoms, and required
the infant to be treated with morphine during an extended, four-
week-long hospital stay.2
Defendant challenges the trial judge's finding that her
conduct constituted abuse or neglect under N.J.S.A. 9:6-
8.21(c)(4)(b). The Law Guardian supports the judge's finding that
the Division of Child Protection and Permanency (Division) met its
1
We use initials and fictitious names to protect the privacy of
the family.
2
This order became appealable as of right after the trial court
entered a final order on August 25, 2016, terminating the
litigation and permitting the Division to institute a guardianship
proceeding.
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burden of proving abuse or neglect by a preponderance of the
evidence. Based upon our review of the record and applicable law,
we affirm.
When defendant gave birth at the hospital, she tested positive
for benzodiazepines, opiates, and cannabis. Zoe exhibited
withdrawal symptoms at birth. The hospital transferred the baby
to a Neonatal Intensive Care Unit (NICU) at another hospital for
specialized care, and referred the case to the Division. When
questioned by a Division caseworker, defendant acknowledged the
results of her drug test, but denied using drugs during the
pregnancy.
At the fact-finding hearing, the Division called Dr. Zarah
Jane Pua, a neonatologist who treated the baby at the NICU, as its
only witness. Dr. Pua testified that, at birth, Zoe was having
withdrawal symptoms and exhibited signs of Neonatal Abstinence
Syndrome, which "is a compilation of clinical symptoms that is
exhibited by a newborn who [is] exposed to drugs, specifically
[and] especially opiates, while the mom is pregnant." Dr. Pua
observed that the baby was "very jittery[,] . . . wasn't eating[,]
. . . she wasn't sleeping between her feeds[,] [and] [s]he had
some . . . respiratory distress, a little bit of increased
respiratory rate." To address Zoe's condition, Dr. Pua treated
her with morphine because that drug "decreases side effects" that
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babies suffer as they are "withdrawing." The morphine treatment
continued from June 3 through June 29, 2015.
Zoe tested positive for marijuana, but not for opiates. Dr.
Pua explained that this was not unusual because it is difficult
to get an uncontaminated urine sample from an infant. In addition,
the testing for opiates occurred the day after Zoe was transferred
to the NICU. Dr. Pua opined that, by that time, it was possible
that the "[opiates] got passed through the placenta from the mom
to the baby and got excreted before we got to get the urine
sample."
Defendant did not testify or even appear at the hearing, and
her attorney did not call any witnesses.
At the conclusion of the hearing, the trial judge rendered
an oral decision, finding that the Division established by a
preponderance of the evidence that defendant abused or neglected
Zoe by taking drugs during her pregnancy, which caused the baby
to be born with severe withdrawal symptoms. This appeal followed.
On appeal, defendant contends the judge erred by concluding
that she abused or neglected Zoe. We disagree.
Our review of the trial judge's factual finding of abuse or
neglect is limited; we defer to the court's determinations "'when
supported by adequate, substantial, credible evidence.'" N.J.
Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89
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(App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12
(1998)). The trial court is best suited to assess credibility,
weigh testimony and develop a feel for the case, and we extend
special deference to the Family Part's expertise. N.J. Div. of
Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010);
Cesare, supra, 154 N.J. at 413.
Unless the trial judge's factual findings are "so wide of the
mark that a mistake must have been made" they should not be
disturbed, even if we would not have made the same decision if we
had heard the case in the first instance. N.J. Div. of Youth &
Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation
marks and citation omitted). "It is not our place to second-guess
or substitute our judgment for that of the family court, provided
that the record contains substantial and credible evidence to
support" the judge's decision. N.J. Div. of Youth & Family Servs.
v. F.M., 211 N.J. 420, 448-49 (2012).
In pertinent part, N.J.S.A. 9:6-8.21(c)(4)(b) defines an
"abused or neglected child" as:
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 or guardian . . .
to exercise a minimum degree of care . . . in
providing the child with proper supervision
or guardianship, by unreasonably inflicting or
allowing to be inflicted harm, or substantial
risk thereof, including the infliction of
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excessive corporal punishment; or by any other
acts of a similarly serious nature requiring
the aid of the court[.]
In order to prevail in a proceeding alleging abuse or neglect
due to the mother's substance abuse during pregnancy, the Division
"must prove present or future harm to a child by a preponderance
of the evidence." N.J. Dep't of Youth & Family Servs. v. A.L.,
213 N.J. 1, 22 (2013). "[T]he primary question under Title 9 is
whether . . . a newborn, 'ha[d] been impaired' or was in 'imminent
danger of becoming impaired' as a result of his [or her] mother's
failure to exercise a minimum degree of care by unreasonably
inflicting harm or allowing a 'substantial risk' of harm to be
inflicted." Ibid. (quoting N.J.S.A. 9:6-8.21(c)(4)(b)) (first
alteration in original).
As defendant correctly points out, "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" N.J.S.A. 9:6-8.21(c)(4)(b). Id. at 23.
Indeed, if there is no evidence of actual harm to the newborn, a
mother cannot be found to have committed an act of abuse or neglect
merely because she ingested drugs while pregnant. Id. at 8.
However, "proof that a child is suffering from withdrawal
symptoms at birth [can] establish actual harm." Id. at 22; see
also In re Guardianship of K.H.O., 161 N.J. 337, 349 (1999) (noting
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that "a child born addicted to drugs and suffering from the
symptoms of drug withdrawal as a result of the mother's substance
abuse during pregnancy has been harmed by the mother and that harm
endangers the child's health and development"). In A.L., the
Court noted that "the Division can prove actual harm by showing
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, convulsion, or tremors." A.L.,
supra, 213 N.J. at 22-23.
Contrary to defendant's argument, the evidence here is much
different than in A.L. In A.L., there was no evidence of actual
harm to the newborn who, despite testing positive for cocaine at
birth, was otherwise born healthy and discharged from the hospital
after only two days. Id. at 8. In this case, defendant tested
positive for opiates and other drugs and this drug use clearly
harmed Zoe. The child was not born healthy and Dr. Pua diagnosed
her with Neonatal Abstinence Syndrome. Zoe experienced severe
withdrawal symptoms, including tremors, respiratory distress, and
problems with eating. The newborn baby had to be hospitalized and
treated with morphine for nearly a month.
The present case is also completely distinguishable from N.J.
Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165 (2014). In
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that case, the mother gave birth while she was participating in a
methadone program on the advice of her doctor. Id. at 169-70.
Even though the baby suffered from methadone withdrawal, the Court
held "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 had
made full disclosure." Id. at 185-86. Here, defendant never
claimed that she was participating in any bona fide, physician-
approved treatment program when she tested positive for
benzodiazepines, opiates, and cannabis when Zoe was born.
Under these circumstances, we are satisfied there was more
than sufficient evidence to support the judge's finding that
defendant abused or neglected Zoe by ingesting drugs during her
pregnancy that caused actual harm to the newborn baby.
Affirmed.
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