NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. K.S.

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NOT FOR PUBLICATION WITHOUT THE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.

K.S.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF R.T.P., a minor.

________________________________________________________________

Argued May 4, 2015 Decided July 7, 2015

Before Judges Lihotz, Espinosa and Rothstadt.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-91-12.

Brian D. Driscoll, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Driscoll, on the brief).

Stephanie Anatale, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Anatale, on the brief).

David Valentin, Assistant Deputy Public Defender, argued the cause for minor R.T.P. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Valentin, on the brief).

PER CURIAM

Defendant K.T. (Kitty)1 appeals from the Family Court's finding that, as a result of her prenatal drug use, her son, R.T.P. (Ryan), was an abused or neglected child as defined in N.J.S.A. 9:6-8.21(c).2 For the following reasons, we affirm.

N.J.S.A. 9:6-8.21(c), in relevant part, defines an "[a]bused 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.

At the fact-finding hearing, the Division of Child Protection and Permanency (the Division) presented testimony from Jenise Williams, a Division permanency worker, and Joanne Hedinger, R.N., who was qualified as an expert in the area of neonatal abstinence syndrome (NAS) over defendant's objection. In addition, the following documents were received in evidence: Division investigation summary, Hedinger's child health program records, Hedinger's curriculum vitae (c.v.), Ryan's certified birth records, and certified Jersey Shore University Medical Center [JSUMC] records for Ryan for November 24 to December 2, 2011.

Kitty did not appear for the hearing,3 but was represented by counsel. No witnesses were presented on her behalf.

When Ryan was born on November 19, 2011, Kitty tested positive for cocaine. Physician progress notes from the Southern Ocean County Hospital (SOCH) neonatal intensive care unit state that, in addition, she was "[o]n Subutex."4 The test results for Ryan's urine and meconium were negative for cocaine and positive for opiates.

Williams went to SOCH and spoke to Kitty about Ryan's positive drug test. She testified that Kitty said she did not understand how that happened. However, she admitted taking illicit drugs, including cocaine and heroin, while she was pregnant.

Hedinger is an employee of University of Medicine and Dentistry of New Jersey (UMDNJ), which is contracted to provide the child health unit and nursing services to the Division. She visited Ryan in the hospital within a day or two of his birth. She described his condition as follows

The infant was starting to show signs of drug withdrawal and the baby had a high pitch shrill cry, was having difficulty feeding . . . . The respiratory rate was high. He had increased muscle tone, tremors both when he was disturbed and undisturbed. He wasn't sleeping well. He needed to be swaddled, snugly and kept in with the lights down in a darkened area of the nursery. He was sucking excessively on his pacifier. . . . [H]e wasn't feeding well and was losing part of his feedings and his birth weight had dropped ten percent which indicates, you know, poor feeding and he wasn't maintaining his feeds.

Hedinger testified that Ryan's symptoms were consistent with NAS. She also explained the Finnigan or NAS scale is "a scoring system for babies that are suspected of going through withdrawal" in which each of a list of enumerated symptoms is "scored with a number score depending on their severity and then they're totaled up over a period of time and then they would give out a total score and anything that scored higher than an eight is indicative of [NAS]" and warrants medical treatment.

Hedinger's review of Ryan's medical records included his NAS scores on November 20, 21, 22, and 23, 2011. His score on the day after he was born was relatively low. Hedinger explained that, since Ryan was opiate-positive at birth, the medication was still circulating in his body and he would not start to go through withdrawal until it had metabolized. On November 21, he had two NAS scores of eight. On November 22, his NAS scores were eight and thirteen. On the following day, Ryan's NAS scores were two and five.

Hedinger testified that SOCH concluded it was unable to care for Ryan appropriately and arranged for his transfer to JSUMC. Ryan was given "a loading dose of methadone" to keep him calm and quiet during the transfer. His admission record at JSUMC lists his admitting diagnosis as drug withdrawal, with the notation, "Neonatal Abstinence Syndrome." Physician progress notes, dated November 29, 2011, state Ryan was "transfer[r]ed from SOCH with NAS for [treatment]."

As part of her nursing report, Hedinger made recommendations about the level of care Ryan would require after discharge. She stated Ryan required a full-time home care provider who received training in NAS and that he should not be placed in daycare. She discussed some of the issues regarding Ryan's care

[B]ecause babies with this history have a higher risk of SIDS, Sudden Infant Death Syndrome, that the caregiver would need to be aware of that, that the caregiver should be CPR certified or at least take a CPR review . . . to be prepared to perform CPR, that the caregiver should be given information on how to care for a drug-exposed child, increased time for feedings, swaddling, a calmer more quiet environment knowing that this child is easily irritated and hard to console. This infant also was going to need hepatitis C testing later on because he was prenatally exposed to hepatitis C and that the child was going to have to be monitored for developmental delays because developmental delays are also something that we see in drug-exposed babies, so the child was going to need an evaluation by Early Intervention.

The trial judge found the Division had proven by a preponderance of the evidence that Kitty "knowingly used banned substances during the time of her pregnancy" and that her prenatal use of drugs harmed Ryan. Accordingly, she concluded Ryan was an abused or neglected child.

In her appeal, Kitty presents the following issues

POINT I

THERE WAS A LACK OF EVIDENCE TO SUPPORT THE FINDING OF NEGLECT OF R.P. BY K.S.

POINT II

THE COURT ERRED IN ADMITTING EXPERT TESTIMONY FROM JOANNE HEDINGER, R.N.

After reviewing these arguments in light of the record and applicable legal principles, we conclude that neither has merit.

I.

We first address defendant's argument that the trial court erred in admitting expert testimony from Hedinger over her objection. That objection was first expressed as a blanket objection to the admission of certified hospital records, including the birth records, without testimony from the attending physicians. Counsel acknowledged the records were certified, but maintained that he wanted the opportunity to cross-examine the attending physicians. After the Division proffered Hedinger as an expert, the court asked counsel if there was any objection. This colloquy followed

[COUNSEL]: I'm going to have to object, Your Honor, and even though I'm sure she's very qualified as the [Division] nurse, if we're allowed to use that expression, at the same time I think because once again for my previous objection if we're going to get into the actual different scores and the fact that we're not going to have testimony from the treating physicians, that is why I'm going to object, Your Honor.

THE COURT: Well, have you seen her CV?

[COUNSEL]: Yes, I've seen it. Yes, I've seen the CV. See, I'm not objecting to what I'm saying it, Judge, is that I cannot go ahead and at the same time and have her testify as far as to go ahead and take the place of one of the treating physicians. That's what I have an issue with, Judge.

THE COURT: Well, I don't think that's what [counsel for the Division] is asking. She's asking her to be qualified as an expert in working with neonatal abstinence syndrome based upon her experience as a nurse in pediatrics.

[COUNSEL]: Okay, fine. It's just that I don't think her testimony . . . can supplant or take the place of [the attending physicians]. I know you're admitting them as certified copies, Your Honor. That's the point that I'm making. I'm not objecting to that all of her testimony, her being able to get to that point, Your Honor. That's what my issue is.

[Emphasis added.]

It thus appears that the primary focus of the objection was the premise that the attending physicians had to appear and be subject to cross-examination. We reject this proposition, finding it lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Defendant also argues the trial court erred in failing to conduct a hearing pursuant to N.J.R.E. 104 prior to finding Hedinger qualified as an expert. "Ordinarily, the competency of a witness to testify as an expert is remitted to the sound discretion of the trial court. Absent a clear abuse of discretion, an appellate court will not interfere with the exercise of that discretion." Carey v. Lovett, 132 N.J. 44, 64 (1993); Garden Howe Urban Renewal Assocs. v. HACBM Architects Eng'rs Planners, LLC, 439 N.J. Super. 446, 455 (App. Div. 2015).

In State v. Torres, 183 N.J. 554, 567 (2005), the Supreme Court discussed the role of a Rule 104 hearing prior to the admission of expert testimony

Prior to the admission of expert testimony, the trial court should conduct a hearing under . . . [Rule 104] concerning the admissibility of the proposed expert testimony. The party offering the evidence has the burden of proof to establish its admissibility. In a Rule 104 hearing, which is conducted outside the presence of a jury, the party offering the proposed expert should elicit the qualifications of the expert and the specific content of the proffered testimony. After cross-examination by the opposing party, the court should render a decision on the admissibility of the proffered testimony. Additionally, the Rule 104 hearing is a favored means to create a record for appellate review of a disputed decision.

[Id. at 567 (citations omitted).]

The trial judge here did not afford defendant the opportunity to cross-examine Hedinger as to her qualifications before finding her qualified. Although the better course of action would have been to question counsel directly to determine whether he wished to voir dire the witness, we do not fault the judge here for interpreting counsel's objection to be based upon the premise that testimony from the attending physicians was required as opposed to an objection to Hedinger's qualifications. Moreover, counsel had the opportunity to probe Hedinger's qualifications during his cross-examination of her in much the same way as would have occurred in a Rule 104 hearing.

Based upon her review of Hedinger's c.v., the trial judge found Hedinger's experience provided a sufficient basis to qualify her as an expert "in the area of neonatal abstinence syndrome and working with pediatrics." Her c.v. stated Hedinger became a registered nurse in 1992. At the time of her testimony in May 2012, Hedinger had served as a health care manager at UMDNJ for approximately two years and nine months. The c.v. described her responsibilities as follows

* Provide nursing case management services for children in out-of-home placement.

* Support and assist the Division in assessing the health care needs of children still in the care of parents

* Clinical nursing assessments at the time of placement to determine the child's health care status, assesses for acute medical needs, and provide a plan for health maintenance

* Provide health education for resource parents, biological parents and DYFS staff on pediatric health care topics.

Hedinger's training as a registered nurse and her specific experience, which included making clinical nursing assessments in cases of acute medical needs and providing health education to the Division and caregivers on pediatric health care topics, provided a sufficient basis to qualify her as an expert here pursuant to the requirements of N.J.R.E. 702. Therefore, we find no abuse of discretion in the determination to permit Hedinger to present expert testimony.

II.

We next turn to the sufficiency of the evidence to support the finding of abuse and neglect. 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 (citation and internal quotation marks omitted).

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)).

"[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." Id. at 23; see also id. at 23 n.3 (noting that New Jersey has not joined those states whose laws treat prenatal drug use as per se child abuse); 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; N.D., supra, 435 N.J. Super. at 497. When "the evidence presented does not demonstrate actual or imminent harm, expert testimony may be helpful." A.L., supra, 213 N.J. at 28; N.D., supra, 435 N.J. Super. at 496. When, as here, there is actual harm, proof of such 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.

In N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165 (2014), the Supreme Court clarified that, under certain circumstances, proof of prenatal drug use coupled with the fact that a newborn suffered withdrawal symptoms is insufficient to establish abuse and neglect. The court held,

[A]bsent exceptional circumstances, 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 has made full disclosure. In this case, a finding of abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b) required proof that [Y.N.] unreasonably inflicted harm on her newborn and did so, at least, by acting with gross negligence or recklessness.

[Id. at 168-69 (emphasis added).]

Defendant contends that, pursuant to Y.N., the finding of abuse and neglect must be reversed. In a supplemental letter submitted pursuant to Rule 2:6-11(d) and at oral argument, her counsel represented that, although she was not in a drug treatment program, she was prescribed Subutex by a physician when she was known to be pregnant. Counsel argued that if Ryan's positive drug tests and withdrawal symptoms were the result of her taking prescribed Subutex, she should not have been found to have abused/neglected him. Defendant's reliance upon Y.N. is misplaced.

To fall within the scope of Y.N., Ryan's withdrawal had to be from Subutex. In Y.N., the sole drug identified as causing the newborn's withdrawal symptoms was methadone. The Court accepted the mother's testimony that she was taking methadone as part of a treatment program she entered prior to giving birth. Neither she nor the baby tested positive for any other drugs. In contrast, Ryan tested positive for opiates at birth. In her verified complaint, Williams stated she was advised by SOCH hospital staff that Ryan's test result was not due to Kitty's use of Subutex. Because Ryan's withdrawal symptoms were unrelated to Kitty's use of Subutex, Y.N. is inapposite.

Even if Ryan had withdrawal from Subutex, the facts here would still not call for a reversal under Y.N. To fall within the scope of Y.N., Ryan's withdrawal from Subutex had to follow his "mother's timely participation in a bona fide treatment program prescribed by a licensed healthcare professional to whom she has made full disclosure." As counsel admitted, Kitty was not participating in a bona fide treatment program. As a result, there is some question as to the source of the Subutex. While it is true Williams testified that Kitty was prescribed Suboxone, she provided no source for that information. We take judicial notice of the fact that Subutex is not a drug that can be prescribed by any physician.

Only qualified doctors with the necessary DEA (Drug Enforcement Agency) identification number are able to start in-office treatment and provide prescriptions for ongoing medication. CSAT (Center for Substance Abuse Treatment) will maintain a database to help patients locate qualified doctors.

[Subutex Q&A, supra.]

There is no evidence that a prescription was issued to Kitty by a qualified doctor with the necessary DEA identification number who is listed on the CSAT database. In addition, counsel's representation that the prescription was issued with knowledge of her pregnancy is unsupported by any evidence.

This case is therefore distinguishable from Y.N. because: Ryan's withdrawal symptoms were not caused by Kitty's prenatal use of Subutex; Kitty was not participating in a bona fide treatment program; and the evidence she was prescribed Subutex by a qualified physician after full disclosure is unpersuasive.

Here, Kitty admitted to using illicit drugs during her pregnancy. The medical records and testimony provide ample support for the conclusion that Ryan suffered withdrawal symptoms following his birth and qualified for medical treatment based upon a diagnosis of NAS. The trial court's finding is therefore supported by sufficient credible evidence in the record.

Affirmed.

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

2 On April 15, 2013, Kitty made a voluntary surrender of her parental rights to Ryan, agreeing he could be adopted by his relative caregivers.

3 The record reflects that the Division arranged transportation for Kitty to appear and provided her with advance notice of that fact. A case aide was dispatched to Kitty's residence on the morning of the hearing to provide transportation. Kitty told the aide "she was coming down." Although the aide waited for thirty to forty minutes, Kitty failed to appear.

4 Subutex and Suboxone are medications "approved for the treatment of opiate dependence [and] contain the active ingredient, buprenorphine hydrochloride, which works to reduce the symptoms of opiate dependence. FDA, Subutex and Suboxone Questions and Answers, http://www.fda.gov/Drugs/DrugSafety /PostmarketDrugSafetyInformationforPatientsandProviders/ucm191523.htm (last updated June 13, 2014) (hereinafter Subutex Q&A).