NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.F.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

T.F.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF T.F., a minor.

________________________________________________________________

Submitted June 1, 2015 Decided June 16, 2015

Before Judges Lihotz and Espinosa.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-178-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Robyn A. Veasey, Deputy Public Defender, of counsel and on the briefs).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor T.F. (Caitlin A. McLaughlin, Designated Counsel, on the brief).

PER CURIAM

Defendant T.F. (Tina)1 appeals from the trial court's judgment finding that she abused or neglected her child, T.F. (Tyler)2 by using drugs while pregnant. There is no question that Tyler had medical issues at birth and that Tina used marijuana and PCP when she was pregnant. However, the Division of Child Protection and Permanency (the Division) failed to prove that Tina's drug use caused Tyler's premature birth or medical issues. Therefore, we reverse.

Tyler was born on September 5, 2012. He was premature at thirty-three weeks gestation, weighing three pounds, five ounces and delivered by cesarean section. Tyler suffered from jaundice and respiratory distress. He was immediately transferred to the NICU, where he remained for approximately three weeks. He required four days of phototherapy. Initially unable to breathe on his own, he remained on a breathing tube until September 14, 2012. He was fed through an intravenous and a naso-gastro tube until September 13, 2012, when he started receiving oral feedings.

On September 6, 2012, the Division received a referral from the hospital that Tina had tested positive for PCP and marijuana3 when Tyler was born. Her hospital records noted a history of daily cigarette smoking and marijuana use once per day.

However, Tyler tested negative for all substances and did not experience any drug withdrawal symptoms. He was released from the hospital on September 27, 2012, with no planned medical aftercare.

On October 1, 2012, the Division filed a complaint, alleging Tyler was an abused or neglected child. On October 11, 2012, the Division found that the allegation of neglect was substantiated against Tina.

N.J.S.A. 9:6-8.21(c), in relevant part, defines an "abused or neglected child" as

a child less than 18 years of age . . . 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, as herein defined, 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 excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court . . . .

 
[N.J.S.A. 9:6-8.21(c)(4)(b).]

Title 9 provides for a fact-finding hearing at which the Division bears the burden of showing, by a preponderance of the "competent, material and relevant evidence," that the child is an abused or neglected child. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 262, 264 (App. Div. 2002); N.J.S.A. 9:6-8.46. The purpose of the hearing "is not to assign guilt to a defendant, but to determine whether a child is an abused or neglected child." N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 328 (App. Div. 2011). Accord N.J.S.A. 9:6-8.44.

The protection of the abuse and neglect statute "is limited to the condition of a child after birth." N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 22 (2013). Therefore, "the primary question under Title 9 is whether [the child], as a newborn, 'ha[s] been impaired' or was in 'imminent danger of becoming impaired' as a result of his mother's failure to exercise a minimum degree of care by unreasonably inflicting harm or allowing a 'substantial risk' of harm to be inflicted." Id. at 22 (quoting N.J.S.A. 9:6-8.21(c)(4)(b)).

The Division presented the testimony of Dana Buitrago, a caseworker, and Vivian Durango, R.N. The Division's proofs at the fact-finding hearing were circumscribed by evidentiary rulings made by the trial court. The Division called Dr. Gerard Figurelli, a licensed psychologist, to testify as an expert "in substance abuse evaluation[,] treatment[,] and the effects of the drugs on individuals who take them" for the purpose of providing an expert opinion as to whether there was a causal link between Tina's prenatal drug use and Tyler's premature birth. Upon objection, the court found Figurelli unqualified to testify as an expert, and noted that even if he were qualified, his report offered only a net opinion. The court also limited Buitrago's testimony, barring the Division from relying upon summaries of Tina's medical records contained in the Division's contact sheets.4 In addition, the court did not permit the Division to introduce evidence that Tina tested positive for drug use after Tyler's birth. The Division did not file a cross-appeal challenging these rulings.

Buitrago visited Tina at the hospital the day after Tyler was born. The nurse in charge informed her that Tina was "a bit dazed" due to pain medication. Tina told Buitrago she "had done something wrong, that she knew she had done something bad to the baby." Tina admitted she understood that her pregnancy was "high risk" due to existing medical issues. Buitrago recounted Tina's statements minimizing her use of marijuana and PCP that conflicted with an admission contained in her medical records that she smoked marijuana once per day. She also reported Tina had a prior arrest for possession of a controlled dangerous substance.

Durango testified as a fact witness regarding the nursing consultation she performed for Tyler on September 21, 2012. She was not qualified to offer a medical opinion as to whether Tyler was harmed by Tina's drug use or if such drug use caused his premature birth. Her report contained a summary of Tyler's treatment since birth as told to her by the hospital staff. During her visit, Tyler was still in the NICU, breathing on his own and being fed by mouth and through a naso-gastric tube.

Defendant moved to dismiss the neglect charge based on actual harm because the Division failed to offer any medical testimony5 or records to support such a finding. The Law Guardian contended the Division put forth a prima facie case and that the burden was now on defendant "to prove that it was not her use of drugs that caused [Tyler] the harm." The judge denied the motion, stating that pursuant to A.L., supra, the Division presented enough evidence to meet the preponderance standard.

Dr. Zhongxue Hua, a physician board certified in forensic pathology, neuropathology, and anatomical pathology, testified for the defense6 and was qualified to give an expert opinion "on the effects of drugs as to causing an injury or causing a disease."

Dr. Hua testified that the causes of premature births can be divided into three basic categories. Thirty percent are idiopathic, meaning the cause is unknown or inconclusive. Within this group, "lower or poor socioeconomic" status was strongly associated with preterm birth. Another thirty percent of preterm births can be attributed to multiple pregnancies, such as twin or triplet pregnancies. The final forty percent of premature births are associated with "known" risk factors, including congenital disease, birth canal injuries, defects in the cervix or pelvic area, pituitary tumors, diabetes, and substance abuse. In this category, substance abuse includes illegal substances as well as legal substances, such as caffeine, alcohol, and cigarettes.

Dr. Hua opined that, in addition to her low socioeconomic status, Tina's medical problems likely contributed to her preterm delivery. In 2011, she was struck by a car while riding her bicycle, resulting in head trauma, coma, lung injuries, complex pelvic fractures, and a laceration of the vaginal birth canal. Tina's medical history includes treatment for a "cystic pituitary adenoma of her brain," which required surgery in 2009 and still requires management with medication.

Dr. Hua explained that the pituitary gland is the "ultimate upstair[s] control" of the body's hormonal system and damage to the pituitary gland could certainly have impacted Tina's pregnancy. Dr. Hua did not have Tina's treatment records or hormonal profile to evaluate the extent of the pituitary damage, but stated he would expect a certain amount of damage in Tina's case. He also noted that the trauma sustained to her pelvic area from the car accident made Tina not a "really good candidate for prolonged conservative approach to try to have vaginal delivery."

Tina's pregnancy began as a twin pregnancy. She received prenatal care at Beth Israel Hospital in Newark, where she was diagnosed with "intrauterine growth retardation" (IUGR), and told it would be difficult to bring both babies to term. At approximately twenty-three weeks gestation, Tina "received a radiofrequency ablation," which terminated the second fetus, who had "multiple congenital abnormalities." Tyler was delivered via a cesarean section due to "breech presentation and [Tina's] history of pituitary tumor, history of pelvic fractures and history of spinal surgery with metal rod."

Dr. Hua explained that even though the second fetus was aborted, it remained inside Tina's uterus, resulting in her giving birth to one live child and one stillborn. Dr. Hua opined that the twin pregnancy "certainly contributed" because of "the sheer volume of the other twin" and "the configuration of the first placenta."

Dr. Hua also opined that Tina's illegal drug use "was not directly related to her pregnancy outcome." He noted that a 2010 study by the Centers for Disease Control (CDC) found that marijuana "does not appear to be associated with low birth weight or preterm birth." Although a 1990 study indicated PCP use was "loosely associated with a high incidence of [IUGR] and preterm birth," Dr. Hua criticized the 1990 study's design as not scientifically sound, stating "the role of alcohol consumption, severity of smoking, and a proper comparison group of nonusers were not addressed in the paper" and the results were not confirmed by later studies. He cited a 1999 study, which found PCP was not associated with low birth weight.

Overall, Dr. Hua opined there was "a lack of conclusive evidence showing that marijuana and PCP can adversely impact pregnancy outcome" and, therefore, "risk assessment of marijuana and PCP cannot be made with any certainty." Accordingly, he asserted that "the bottom line" was "there is no scientific evidence to help conclusively say these two illegal substance[s] contribute[d] to" Tina's preterm delivery.

Dr. Hua ultimately concluded

In light of [Tina's] complicated and convoluted medical history, the multiple components can contribute to her preterm birth . . . including her low socioeconomic status, her twin pregnancy, her use of . . . cigarette[s], her use of alcohol and her previous trauma to her birth canal specifically in the pelvic bone area and vaginal area laceration, plus her medical history of previous[ly] being treated both medically and surgically [for] the pituitary cystadenoma, all of this contribute[s] more significantly, tangibly to her preterm delivery.

In contrast to that, her level of PCP and marijuana do not contribute much to her preterm birth and . . . small[er] than gestational age delivery.

In a written decision, the trial judge stated her reasons for concluding the Division had proven Tyler was an abused or neglected child by a preponderance of the evidence. Despite the Division's failure to present medical expert testimony, or, indeed, any evidence on causation, the judge found Tina's "drug use during her pregnancy caused actual harm to her son." She discounted Dr. Hua's opinion as "not dispositive of the issue," because "research in this area while studied extensively, has had limited success." The judge found "the record contains abundant and compelling evidence that [Tyler] suffered actual harm at the time of the birth." Observing that the preponderance of evidence standard applied, the judge stated, "The Division is not required to prove beyond doubt that the mother's use of marijuana and PCP caused the premature birth of her son resulting in a three week stay in the NICU." The court found that Tina knew her pregnancy was "high risk," but still smoked PCP-laced marijuana, smoked cigarettes, and used alcohol. It noted "these activities were in her control" and that it was immaterial that some of the substances were legal. Accordingly, the court found Tina "failed to exercise a minimum degree of care and harmed her son by ingesting PCP, marijuana, smoking cigarettes and drinking alcohol."

Tina presents the following issues for our consideration in this appeal

POINT I

THE COURT MISAPPLIED THE LAW IN FINDING THAT [TINA] ABUSED OR NEGLECTED HER CHILD AND AS SUCH THE FINDING SHOULD RECEIVE NO DEFERENCE.

POINT II

THE COURT INAPPROPRIATELY RAISED THE STANDARD OF MINIMUM CARE IN DETERMINING [TINA] ABUSED OR NEGLECTED [TYLER].

An appellate court has "a strictly limited standard of review from the fact-findings of the Family Part judge." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div. 2010). Due deference is owed "to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). This court may not "second-guess or substitute [its] judgment for that of the family court," so long as "the record contains substantial and credible evidence to support [its] decision." Id. at 448-49. A family court's findings of fact should be disturbed only if they "are so wide of the mark that [the appellate court's] intervention is necessary to correct an injustice." Id. at 448 (internal quotations marks omitted).

However, "where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993) (citation and internal quotation marks omitted). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The errors here are twofold and concern the court's conclusion that Tina "failed to exercise a minimum degree of care and harmed her son by ingesting PCP, marijuana, smoking cigarettes and drinking alcohol." As to the illegal substances, the court erred in weighing the evidence to find adequate proof of causation. As to the use of cigarettes and alcohol, the court expressly relied upon an Appellate Division opinion that was subsequently reversed in finding that these activities were in her control and that the fact the activities were legal was immaterial. See N.J. Div. of Youth & Family Servs. v. Y.N., 431 N.J. Super. 74, 81 (App. Div. 2013), rev'd and remanded, 220 N.J. 165 (2013).

A.

The Division did not seek a finding of abuse or neglect based upon Tina's tobacco and alcohol use. As a result, Tina lacked notice of such an allegation and a meaningful opportunity to rebut such a charge. Moreover, to the extent that Y.N. provides the standard applicable to such an allegation, the evidence here is insufficient to support a finding of abuse and neglect on that basis.

In Y.N., we held that charges of abuse and neglect were substantiated because the child was born addicted to methadone, regardless of the fact that the methadone was obtained from a legal source. Id. at 80-81. In reversing, the Supreme Court held that, where the newborn had been exposed to methadone because the mother had

timely participat[ed] in a bona fide treatment program prescribed by a licensed healthcare professional to whom she has made full disclosure . . . a finding of abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b) required proof that [the mother] unreasonably inflicted harm on her newborn and did so, at least, by acting with gross negligence or recklessness.

[Y.N., supra, 220 N.J. at 168-69.]

No evidence was presented that, during the course of her prenatal care for her high risk pregnancy, Tina was warned to refrain from smoking cigarettes or drinking alcohol. There was no evidence that Tina tested positive for alcohol when she gave birth or that Tyler suffered from fetal alcohol syndrome. The record also fails to show that Tina consumed alcohol in quantities that would pose a risk to Tyler. Therefore, the record fails to show by a preponderance of the evidence that Tina acted with gross negligence or recklessness in her alcohol and tobacco use.

B.

"[N]ot 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." A.L., supra, 213 N.J. at 23 (noting that New Jersey has not joined those states whose laws treat prenatal drug use as per se child abuse); see also N.J. Div. of Youth & Family Servs. v. N.D., 435 N.J. Super. 488, 494 (App. Div. 2014) (same). Actual harm under the statute can be established by offering proof that a child suffered drug withdrawal symptoms at birth or 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, convulsions, or tremors." A.L., supra, 213 N.J. at 22-23. Expert testimony is not always required to prove actual harm in an abuse and neglect case. Id. at 29; see also N.D., supra, 435 N.J. Super. at 497. Instead, proof of actual harm "may come from any number of competent sources including medical and hospital records, health care providers, [or] caregivers, [as well as] qualified experts." A.L., supra, 213 N.J. at 23.

Here, Tyler suffered from many of the conditions identified in A.L. as probative of actual harm. But the record reflected that there were factors other than Tina's drug use that could credibly contribute to Tyler's premature birth and medical issues. Tyler did not test positive for any illegal substances and did not experience withdrawal symptoms. The Division did not establish either through expert testimony or any other evidence a causal link between Tina's drug use and Tyler's difficulties. Moreover, it did not rebut any of the evidence regarding other contributing factors presented by the defense.

The Division's case suffered from a similar lack of proof as to causation in N.D., where the mother tested positive for cocaine after she delivered her son and admitted to using cocaine, alcohol, and marijuana during her pregnancy. N.D. supra, 435 N.J. Super. at 490-91. Her son was born premature, with low birth weight, and was placed in an incubator. Id. at 493, 496-97. He tested positive for cocaine, but did not suffer any withdrawal symptoms. Id. at 493. In the days following his birth, he experienced "a dramatic weight loss . . . and had difficulty maintaining his body temperature." Id. at 497.

At the fact-finding hearing, the Division did not present any medical testimony linking the mother's cocaine use to the child's premature birth or low birth weight. Id. at 491, 493, 496-97. "There were no medical experts or hospital personnel to interpret the positive urine test, the level of cocaine in [the child's] system, the effect such cocaine had or would have on him, and whether such cocaine would cause [the child] any harm in the future." Id. at 496 (internal quotation marks omitted). Nevertheless, the court found that the child suffered per se harm because he tested positive for cocaine, "defying anyone to suggest that drug use at that stage of pregnancy would not be harmful to the child." Id. at 493.

We reversed, stating, "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 494 (quoting A.L., supra, 213 N.J. at 28). Although we acknowledged that expert testimony was not required in every case, we found that no causal connection could be established between the mother's cocaine use and the effects on her son's health without expert testimony on the record presented. Id. at 497. We stated, "[t]he 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." Ibid.

Without proof of a causal link between the prenatal drug use and Tyler's medical issues, there can be no finding of abuse and neglect in this case on that basis.7 The trial court was free to make its own assessment of the weight to be given to Dr. Hua's expert opinion and correctly stated the Division was "not required to prove beyond doubt that the mother's use of marijuana and PCP caused the premature birth of her son resulting in a three week stay in the NICU." However, the Division was required to establish the causal link by a preponderance of the evidence. It failed to do so.

Reversed.

1 We use pseudonyms to protect the privacy of the child.

2 Tina purportedly changed the child's name from T.F. to T.M.C. The record does not reflect a legal name change. However, we refer to the child by his pseudonym to avoid confusion.

3 Tina also tested positive for opiates. However, it is undisputed that the positive test was due to the medication given to Tina during her cesarean section.

4 The Division attached contact sheets to their complaint which purportedly summarized Tina's medical records dating back to 2009. Upon objection by defense counsel, the court ruled Buitrago could not testify as to statements summarized in the contact sheets; the actual records containing the statements needed to be produced and properly certified. Buitrago's testimony was accordingly limited.

5 Prior to resting its case, the Division attempted to address this deficiency by asking the court to take judicial notice of the entirety of an article that had been excerpted in the defense expert's report, a 1990 study about the effects of PCP on preterm birth. Although the article was marked for identification, the record does not reflect that it was admitted into evidence or that the court took judicial notice of its contents.

6 The defense also presented testimony from Tina's paramour, who was not Tyler's biological father, regarding housing arrangements for Tyler.

7 The Division proceeded against Tina based on a theory of actual harm only. However, the Division argues that if this court finds that the lower court erred in finding actual harm caused by Tina's drug use, it nonetheless met its burden by showing that Tina's drug use presented an imminent risk of harm. In making this argument, the Division relies on evidence deemed inadmissible at the fact-finding hearing, as well as events that occurred subsequent to the hearing. As we have noted, the Division did not appeal from the adverse evidentiary rulings and may not rely upon evidence deemed inadmissible to support this alternative theory on appeal. Moreover, the Division never contended it sought to admit any of this evidence to establish an imminent risk of harm. In their written summations, both the Division and the Law Guardian confined their arguments to actual harm. Thus, Tina had no opportunity to rebut the accusation that her drug use presented an imminent risk of harm. R. 5:12-1(f).