DCPP VS. A.S. AND A.S., IN THE MATTER OF R.R.S.S. (FN-09-0274-19, 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NOT FOR PUBLICATION WITHOUT THE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-3849-19
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
A.S.,1
Defendant-Appellant,
and
A.S.,
Defendant.
___________________________
IN THE MATTER OF R.R.S.S.,
a minor.
___________________________
Submitted May 19, 2021 – Decided December 9, 2021
1
Pursuant to Rule 1:38-3(d)(12), we use initials or pseudonyms to protect the
parties' privacy and preserve the confidentiality of these proceedings in
accordance with Rule 5:12-1 to -7.
Before Judges Fuentes and Rose.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-0274-19.
Joseph E. Krakora, Public Defender, attorney for
appellant (Carol L. Widemon, Designated Counsel, on
the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Amy Melissa Young, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Dana Citron, Designated
Counsel, on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Defendant A.S. is the biological mother of R.R.S.S. (Renee), a baby girl
born in March 2019. A.S. appeals from an order entered by the Family Part that
found she abused and neglected her infant daughter, as defined in N.J.S.A. 9:6-
8.21(c)(4)(b), by continuing to use heroin, benzodiazepines, and cannabis
throughout her pregnancy, and failing to take medically reasonable measures to
treat her addiction. The Family Part judge who presided over this case found
defendant's failure to take any prophylactic measures resulted in Renee suffering
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withdrawal symptoms and ultimately being diagnosed with neonatal abstinence
syndrome.
Against medical advice, defendant left the hospital the day after giving
birth to Renee, abandoning her medically compromised infant daughter. Days
later, Renee was transferred to the neonatal intensive care unit (NICU).
In this appeal, defendant argues the Family Part judge erred as a matter of
law because the Division of Child Protection and Permanency (Division) failed
to prove, by a preponderance of the evidence, that she abused and neglected her
daughter within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b). Specifically,
defendant argues the Division failed to prove, by a preponderance of the
evidence, she caused Renee actual harm or placed her in imminent risk of
substantial harm.
We reject these arguments and affirm. We gather the following facts from
the record developed before Judge Radames Velazquez, Jr., and the specific
findings he made based on the evidence presented by the Division at the fact-
finding hearing held on August 23, 2019.
I.
The day after Renee was born, Jersey City Medical Center (JCMC) social
worker Nancy Floom reported to the Division "allegations of neglect,
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abandonment[,] and [a] substance affected newborn." Division intake
caseworker Linda Arias responded to the referral from JCMC. Floom informed
Arias that defendant tested positive for opiates, benzodiazepines, and cannabis
at the time she gave birth to Renee. The newborn tested positive for
benzodiazepines and opiates. Arias learned defendant has "a history of
[intravenous (IV)] heroin use" and ingested five to six bags of heroin the day
she gave birth the Renee. Defendant did not have prenatal care throughout her
pregnancy and left JCMC against medical advice and without making plans for
Renee's care.2
At 12:10 p.m. on the same day defendant left JCMC, Division caseworkers
Arias and Buddy P. Toribio visited defendant at her maternal aunt's residence in
the City of Bayonne. At the time, the maternal aunt was ninety years old and
had custody of defendant's other daughter. Division records of this encounter
indicate defendant was "well groomed" and "coherent." Defendant told Arias
she learned she was pregnant while incarcerated at the Hudson County
2
According to Division records, defendant only provided a telephone number
when she left JCMC without Renee. She did not provide an address where she
could be found or inform the medical staff of her plans with respect to her infant
daughter. The record specifically noted defendant "did not say she wanted to
leave her child under [the New Jersey Safe Haven Infant Protection Act,
N.J.S.A. 30:4C-15.5 to -15.11]."
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Correctional Facility (HCCF) in August 2018. She attempted to "wean off"
heroin with methadone, but her abstinence lasted only three weeks.
The day after her birth, JCMC transferred Renee to the NICU because she
was "presenting severe withdrawal symptoms." From March 19 to
March 30, 2019, Renee "was given [a] neonatal morphine solution for
withdrawal treatment." After a brief pause, the morphine solution treatments
resumed on March 31, 2019, when Renee manifested serious withdrawal
symptoms. "She was irritable, with high temperature and unable to sleep. She
had tremors when awake and [her] feeding [was] uncoordinated." The second
round of morphine treatment lasted from March 31 until April 4, 2019.
On April 9, 2019, JCMC medically discharged Renee. On that same date,
the Division executed a Dodd 3 removal and placed Renee at a Division Resource
Home. The Division filed an Order to Show Cause on April 11, 2019, before
Judge Velazquez. Defendant was present and represented by counsel through
the Office of the Public Defender, and counsel assigned by the Office of the Law
Guardian appeared on behalf of Renee.
3
"A 'Dodd removal' refers to the emergency removal of a child from the home
without a court order, pursuant to the Dodd Act, which, as amended, is found at
N.J.S.A. 9:6-8.21 to -8.82." N.J. Div. of Youth & Fam. Servs. v. N.S., 412 N.J.
Super. 593, 609 n.2 (App. Div. 2010).
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The Deputy Attorney General (DAG) who appeared on behalf of the
Division represented to Judge Velazquez that Renee's alleged biological father 4
was not a suitable placement for this medically fragile infant. He also declined
to appear in court because he has a criminal record that includes possession of
illicit narcotics to support his addiction, burglary, robbery, and violation of
probation. He also resides in a basement apartment that, by his own admission,
is not suitable to accommodate Renee's care and medical needs.
The DAG petitioned the court to grant the Division legal custody of Renee
and to direct the child's biological parents to undergo drug screening, and
thereafter comply with any recommended treatment plan. The Division also
asked the court to order both biological parents to undergo psychological
evaluations, and defendant to undergo a psychiatric evaluation. Finally, the
Division asked the court not to permit either parent unsupervised visitation with
the child.
After considering the arguments and concerns raised by counsel on behalf
of all parties, Judge Velazquez found the emergent removal of the child "was
4
The man identified as Renee's biological father initially disputed paternity.
The Division thus requested the court to order a paternity test to settle the matter;
a DNA test confirmed he is Renee's father. Although this man was a party in
this case before the Family Part, he is not part of this appeal.
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necessary to avoid an ongoing risk to [her] life, safety and health." The judge
found defendant unsuitable to assume any parental responsibilities at the time
because she was "incarcerated for her failure to comply with the requirements
of her drug court program." 5 Finally, Judge Velazquez found Renee's removal
was required "due to the imminent danger to the child's safety, health or
welfare . . . ."
II.
On August 23, 2019, Judge Velazquez conducted the fact-finding hearing
required under N.J.S.A. 9:6-8.44 to determine whether Renee had been abused
or neglected. In addition to the records documenting the investigation of the
child's birth and defendant's history of drug addiction, the Division presented
the testimony of eight witnesses: neonatologist Dr. Sadia Razi, defendant's
probation officer, the supervisor of the Bayonne Community Mental Health
Center (BCMH), two family members, and three Division caseworkers.
Defendant did not call any witnesses nor testify in her own defense.
5
Defendant was convicted of fourth degree theft by unlawful taking,
N.J.S.A. 2C:20-3(a). On February 15, 2019, she was sentenced to Drug Court
Probation, set to expire on December 14, 2023. As a condition of her probation,
defendant was required to successfully complete the Hudson County Drug Court
Program. On April 9, 2019, defendant was arrested during her Drug Court
hearing on an open warrant.
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In his opening statement, defendant's counsel framed the Division's
burden of proof in this case as follows:
Your Honor, it appears that the moving party is making
something simple into something complex. The case
would revolve around whether the Division can prove
withdrawal occurred at the time of birth, not whether an
individual was suffering from addiction or exercise[d]
the degree of harm because of being an addict.
....
All I'm saying is the case is simple. Can they prove
withdrawal or can they not and that's it. That's all that
matters in a case like this.
The Division's first witness was Dr. Sadia Razi, board certified in
pediatrics and neonatology. According to Dr. Razi, "[a] neonatologist is an
intensive care physician who take[s] care of the infants who are either premature
or babies who are sick, for example with infections, with respiratory distress,
with drug withdrawal or other medical problems." The Division did not offer
nor did Dr. Razi provide an expert report.
Defense counsel did not object to Dr. Razi's testifying in her capacity as
Renee's treating physician including an explanation of her diagnosis of neonatal
abstinence syndrome and withdrawal. However, the Law Guardian argued Dr.
Razi needed "to be qualified as an expert in order to provide [this] testimony. .
. . She was the treating physician for this child and the medical records that
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were admitted for this child are essentially the report." Judge Velazquez found
Dr. Razi "certainly has the requisites to give testimony as an expert . . ." but
warned the DAG not to go beyond "what [Dr. Razi's] role was in this particular
case . . . ." The judge allowed Dr. Razi to express her opinions and explain her
diagnosis of neonatal abstinence syndrome based on the facts in this case but
emphasized "she's primarily here as a fact witness."
Dr. Razi explained drug withdrawal in newborns "is called neonatal
abstinence syndrome." The infant is treated with morphine to ameliorate the
withdrawal symptoms. Renee tested positive for opiates and benzodiazepine at
birth. Renee was diagnosed with neonatal abstinence syndrome two days after
her birth and was admitted and treated in the NICU for three weeks. In addition
to morphine, Renee was placed in a dark place to avoid stimulation. According
to Dr. Razi, infants with this syndrome "require [a] special type of physical
therapy, occupational therapy, and speech therapy."
Hospital records previously admitted into evidence reflect that on March
31, 2019, Renee "was very irritable with [a] high temperature, unable to sleep,
uncoordinated feeding, agitated, tremors when awake." Dr. Razi explained this
indicated "the baby had [a] very high score of withdrawal." Based on her
experience treating thirty to forty babies with neonatal abstinence syndrome,
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Dr. Razi testified newborns who experience neonatal abstinence syndrome "can
have poor neurological outcomes. . . . [T]hey can have [a] lower IQ than most
. . . babies do. They can have . . . [attention-deficit/hyperactivity disorder
(ADHD)], autism, or other type[s] of psychiatric problems like anxiety . . .
learning disabilities or issues with their grade level."
The remaining witnesses called by the State focused primarily on
defendant's personal life. For example, Omar Salas, BCMH's addiction and
mental health services program supervisor, testified defendant's heroin addiction
began when she was prescribed pain medication for an injury she suffered in a
car accident. Division caseworker Linda Arias described how the investigation
began from the referral received from the JCMC social worker and then resulted
in Renee's removal. Arias also testified to defendant's admission of ingesting
"five to six bags of heroin" the day she gave birth to Renee.
The Division also called Hudson County Drug Court probation officer
Myriam Abreu-Borchert, who was assigned to defendant after she violated her
probation. As a condition of her special probation, defendant was required to
attend Drug Court sessions, report to her probation officer, and be monitored to
detect any drug abuse. Abreu-Borchert testified defendant failed to comply with
these requirements less than a month before Renee was born.
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After considering the evidence presented, as well as the arguments of
counsel, Judge Velazquez found it undisputed that defendant had a serious
heroin addiction when she gave birth to Renee. The judge found defendant
admitted on the day she gave birth to her daughter "she used approximately five
to six bags of heroin . . . ." The judge referred to a particular JCMC medical
record admitted into evidence, stating
the child was seen having [a] quivering chin, a clenched
jaw which is consistent with the testimony of Dr. Sadia
Razi who said that the child ranked [nineteen] on a
scale of approximately [twenty-one] to [twenty-two]
being a very significant high rating for children
suffering from withdrawal symptoms, requiring
medication [and] three weeks hospitalization.
Based in large part on Dr. Razi's testimony, Judge Velazquez found the
Division proved, by a preponderance of the evidence, it is "highly likely that in
the future [Renee] will require additional services and additional medical care
related to learning disabilities and neurological issues . . . ." Based on these
findings, Judge Velazquez concluded the Division proved, by a preponderance
of the evidence, defendant caused actual physical and neurological harm to her
infant daughter by ingesting heroin during her pregnancy, up to and including
the day she gave birth to Renee.
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On September 17, 2019, less than a month after the fact-finding hearing,
the Division learned defendant and Renee's biological father were arrested on
September 11th and charged with burglary and theft. They were both detained
in the HCCF. Division records noted "[b]oth parents admit to drug use up until
their incarceration." Judge Velazquez conducted four compliance and review
hearings over the next eight months. The Division arranged for Renee to visit
her biological parents at the HCCF. But the room the prison provided for visits
was not conducive to an infant's needs. The baby was not able to crawl around,
and toys were not permitted. The visits were thus "cut short by the parents due
to [Renee] being uncomfortable and inconsolable."
Judge Velazquez conducted a total of four review hearings from
September 26, 2019, to May 7, 2020. Defendant was in a drug treatment
program until she was discharged in March 2020 for fighting and distributing
medication to other participants. The resource parents attended the permanency
hearing held on March 5, 2020. The resource mother testified her family
consisted of her husband, her sixteen-year-old son, and ten-year-old daughter.
The resource mother also apprised Judge Velazquez of the progress Renee had
made since she was placed in her home by the Division and her family's desire
to adopt the child if reunification proved to be unwarranted.
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When [Renee] entered our home [she was] seven weeks
old. She was a frail little peanut that trembled
occasionally from her withdrawal and she required lots
of TLC. We instantly fell in love with her, the whole
family did. We took all the necessary steps to get her
on track, including early intervention and specialist
appointments.
[Renee] currently attends the daycare with me and is in
the baby room. She absolutely loves school. She loves
seeing her friends and is known as the best cuddler in
her class. Her teachers just adore her and spoil her
partially because I'm their boss.[6] But [Renee] is smart,
funny and a bundle of joy. She loves bath time, babbles
up a storm, she loves to crawl around chasing the dog.
She is getting ready to walk and constantly dumps the
dog's bowl. She loves to do that after she's been just
dressed.
She is a determined little girl and currently isn't a fan
of the word no. Most of all [Renee] is happy and she is
thriving. She continues to make progress in her
environment and amazes us every[ ]day.
When we were asked to help and finally made the big
decision to take her into our home[,] we never imagined
the joy that she would bring us. Here, we thought we
were blessing this child with a loving home when, in
turn, she has really blessed us.
My husband and I want what is best for [Renee]. She
deserves everything. We always want to be part of her
life and continue to see her grow. With that being said,
if reunification cannot be accomplished, we want to
express our desire to adopt [Renee] and continue to love
6
The resource mother testified she has been the director of an academic
childcare center for the past nineteen years.
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and care for her. Either way, we would like to be in her
life. Thank you.
Judge Velazquez conducted the final permanency hearing telephonically
on May 7, 2020, during the height of the COVID-19 pandemic. The DAG noted
that since the last hearing, defendant had been discharged from the drug
rehabilitation program at Integrity House for "distributing prescribed medication
to other members of the program . . . [and] was also involved in a physical
altercation." As result, she was no longer receiving any services for her
addiction.
By contrast, the Division reported Renee remained in the physical custody
of the resource family, was well cared for, and continued to thrive. Her resource
parents also remained committed to adopting the child. On behalf of the
Division, the DAG requested the court: (1) preserve the status quo with respect
to Renee; (2) enjoin the biological parents from having any physical contact with
Renee until the COVID-19 restrictions are lifted; (3) order the biological parents
to submit to psychological evaluations; and (4) order defendant to submit to a
psychiatric evaluation.
Defense counsel informed the judge defendant remained hopeful of
reuniting with Renee after she was released from prison. Defendant addressed
Judge Velazquez directly concerning the Integrity Program incident and claimed
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the program was no longer available to her due the nature of her sentence. With
respect to Renee, defendant noted she had not seen her for more than three
months. She was happy the child was safe and "glad that she's with good people,
but it's so not where she belongs, with her mom and dad."
Judge Velazquez granted the Division's application and entered a final
permanency order to terminate the current Title 9 litigation. The judge found it
was not in Renee's best interest to reunify with her biological parents and
adopted the Law Guardian's proposed permanency plan of termination of
parental rights followed by adoption by current resource parents.
III.
In New Jersey Department of Children & Families v. A.L., our Supreme
Court made clear the terms "abuse" and "neglect" of a child in N.J.S.A. 9:6 -
8.21(c) refer to "a child less than 18 years of age[,]" not a fetus. 213 N.J. 1, 8,
20 (2013). The Court thus held: "If an expectant mother's drug use causes actual
harm to the physical, mental, or emotional condition of a newborn child, a
finding of abuse or neglect is appropriate." Id. at 8. Here, Judge Velazquez
found the Division proved, by a preponderance of the evidence, defendant
abused and neglected her newborn daughter by ingesting five to six bags of
heroin on the day she gave birth, as well as by using opiates, benzodiazepines,
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and cannabis throughout her pregnancy. Based on Dr. Razi's unrebutted
testimony, Renee experienced severe drug withdrawal within a day of her birth.
This physical and emotional manifestation of pain in newborn babies is known
as neonatal abstinence syndrome.
The evidence presented by the Division proved beyond any doubt Renee
was correctly diagnosed with neonatal abstinence syndrome two days after her
birth. She was admitted to the NICU for three weeks where she was treated with
morphine and placed in an environment devoid of stimulation. Hospital records
documented Renee was very irritable; she had a high temperature and was
unable to sleep or coordinate her feeding schedule; she was at times agitated and
showed signs of tremors when awake. All these manifestations of physical
distress and potential neurological trauma are directly attributable to defendant's
use of heroin and other illicit drugs during her pregnancy.
N.J.S.A 9:6-8.21(c)(4)(b) defines child abuse or neglect to include
"physical, mental, or emotional condition that has been impaired or is in
imminent danger of becoming impaired as the result of the failure of his [or her]
parent or guardian . . . to exercise a minimum degree of care . . . by unreasonably
inflicting or allowing to be inflicted harm, or a substantial risk thereof . . . ."
The Division can meet its burden of proof that a newborn has been abused and
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neglected by presenting competent evidence that a child is suffering from
withdrawal symptoms at birth. A.L., 213 N.J. at 22.
Defendant admitted she did not seek prenatal care nor participate in
methadone treatment to address her drug addiction, and thereby did not negate
or reduce the potential harm to her child at birth. Cf. N.J. Div. of Child Prot. &
Permanency v. Y.N., 220 N.J. 165, 183 (2014) (holding a mother who
participates in a physician-prescribed methadone treatment program does not,
ipso facto, abuse her child at birth under Title 9, even if the baby is diagnosed
with neonatal abstinence syndrome at birth). Stated differently, 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. The salient facts here are akin to the situation this court confronted
in New Jersey Division of Child Protection & Permanency v. K.M., 444 N.J.
Super. 325 (App. Div. 2016). In K.M., the defendant was addicted to opiates
when she became pregnant. Id. at 327-28. Without consulting a physician, the
defendant clandestinely used Suboxone -- a medication prescribed to ameliorate
the symptoms of opiate withdrawal -- during her pregnancy. Id. at 328. We
upheld a finding of abuse and neglect based on the defendant's intentional
decision not to disclose her opiate addiction to the neonatal staff at the hospital
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where she gave birth. Id. at 331. We held the defendant's decision to
intentionally conceal her addiction caused her newborn infant to suffer the
distress and pain of withdrawal over a three-day period. Ibid. The baby was
subsequently diagnosed with neonatal abstinence syndrome. Id. at 331-33.
The record developed by the Division at the fact-finding hearing amply
supports Judge Velazquez's findings that defendant's drug use caused Renee to
be born addicted to opiates and benzodiazepines. Judge Velazquez accepted
Dr. Razi's testimony and found Renee suffered serious withdrawal symptoms
related to neonatal abstinence syndrome. This conclusion is also supported by
the documentary evidence admitted into evidence. Renee was placed in the
hospital's NICU for three weeks as a direct and proximate result of defendant's
continued use of heroin and other illicit substances while pregnant. Defendant's
failure to take reasonable measures to address her drug addiction caused this
child serious neurological harm.
Affirmed.
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