NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. B.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-00

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,1

Plaintiff-Respondent,

v.

B.B.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF A.B.,

Minor.

___________________________________

ArguedNovember 3, 2014 Decided May 4, 2015

Before Judges Simonelli and Leone.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-412-12.

Larry Leung, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Leung, on the briefs).

Joyce Booth, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; David Futterman, Deputy Attorney General, on the brief).

Margo E.K. Hirsch, Designated Counsel, argued the cause for minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Hirsch, on the brief).

PER CURIAM

Defendant B.B. (Mother) appeals the family court's fact-finding that she abused or neglected her daughter, A.B., after the child was born prematurely with medical issues due to Mother's use of phencyclidine (PCP). We affirm.

I.

At the fact-finding hearing before the Family Part, the following evidence was presented. Mother learned she was pregnant in October 2011 with her first child, A.B. She had been using PCP and marijuana sporadically since 2008. Despite knowing she was pregnant, she continued to use PCP and marijuana. Indeed, in February 2012, one day after she admittedly smoked PCP, Mother gave birth after only approximately twenty-five weeks gestation. At birth, A.B. weighed one pound, eleven ounces. Although A.B.'s urine tested negative for drugs, Mother tested positive for both marijuana and PCP.

A.B. immediately presented with severe complications due to her prematurity, including hypotension, pulmonary hemorrhages, anemia, hyperbilirubinemia, respiratory distress, and unusual jerky movements. The newborn was unable to breathe on her own and had to be put on a respirator. She was placed in the neonatal intensive care unit (NICU) at Jersey City Medical Center, but eventually had to be transferred to St. Joseph's Hospital to receive more extensive specialized treatment. After being transferred back to Jersey City Medical Center, A.B. was discharged from the hospital approximately ninety-four days following her birth.

Prior to discharge, the Division filed an emergency removal of A.B. pursuant to N.J.S.A. 9:6-8.29 to -8.30, and a verified complaint under N.J.S.A. 9:6-8.21 to -8.73. The family court granted an order to show cause continuing the Division's care and custody of A.B. The newborn was placed in a resource home upon her discharge.

While A.B. was hospitalized, Mother entered into drug treatment with the help of the Division. Although Mother regularly attended her treatment, she tested positive for PCP at least seven times between March 6, 2012, and April 27, 2012. She was eventually accepted into a residential treatment program in September 2012. A.B. was placed with Mother at the program in December 2012.

At the fact-finding hearing, the court allowed Dr. Robert Morgan to testify, over the objection of Mother's counsel, as "an expert in the area of treatment of infants potentially exposed to drugs during their mother's pregnancy." The court noted that Dr. Morgan had extensive experience in the field, including his tenure as the Chief Medical Officer of the Department of Children and Families, his training in neo-natal intensive care, and his review of "thousands of these types of cases."

Dr. Morgan testified that PCP can "cause rapid and substantial changes in blood pressure, heart rate and respiration." He opined that PCP has been "documented to cross the placental barrier so that if a mother takes PCP during pregnancy, it will go into . . . the fetus with resultant same effects and has been . . . associated with growth retardation of the infant, premature delivery, [and] respiratory extreme respiratory distress after delivery." Having reviewed A.B.'s medical records, Dr. Morgan testified it was his medical opinion that Mother's use of PCP during pregnancy "was a prime precipitating factor" in A.B.'s premature birth and resulting extreme health conditions.

Dr. Morgan ruled out other factors known to cause premature delivery including "[a]lcohol abuse, heavy nicotine exposure, [and] chromosome abnormalities." Mother "was in good health," "[t]here was no evidence of a chronic medical condition that would have compromised the intrauterine environment," and nothing in the records "indicate[d] any of these other risk factors." Accordingly, he concluded Mother's prenatal PCP use was the likely cause of A.B.'s premature birth and resulting complications. The doctor noted that "less than five percent" of "normal uneventful pregnancies" would result in such premature birth.

Dr. Morgan's letter report to the Division, which was introduced into evidence, similarly stated "[f]etal exposure to PCP can lead to premature birth," that "it is highly likely that the maternal use of PCP was a contributing, if not the direct factor, in the premature birth of this infant," and that there were "no other risk factors for such a profoundly premature delivery other than the extensive use of PCP by the mother."

Although A.B.'s urine tested negative for drugs, Dr. Morgan testified the appropriate characterization of these test results is "non-detectable." As A.B. had just twenty-five weeks gestation, her "kidneys do not even work hardly at all at this point in time and the fact that a specific substance is not picked in a study that's done on adult's body specimens generally is not unusual at all. It doesn t mean there was not exposure[.]" Dr. Morgan opined that "there's no one who would look at this infant and, even though this [test] was negative, would say that there's no way at all that this baby was not drug exposed." He also noted the hospital records indicated A.B. was treated as "a drug exposed infant."

Dr. Morgan also testified he "suspect[ed]" A.B. experienced withdrawal as a result of Mother's PCP use based on her "jerky" movements, although he could not be certain based on her medical records. He acknowledged that it is difficult to identify withdrawal symptomatology in a newborn like A.B. "in a sedated convalescent state on mechanical ventilation," particularly because the concentration levels of PCP in a newborn or fetus cannot "really [be] measured." The family court ultimately did not rely on withdrawal as an indicator of harm.

During his testimony, Dr. Morgan cited the article, Bannie L. Tabor et al., Perinatal Outcome Associated with PCP Versus Cocaine Use, 16 The American Journal of Drug & Alcohol Abuse 3-4, 337-48 (1990) (hereinafter "PCP v. Cocaine Use"). The trial court, over objection, permitted counsel for the Division to read a portion of the article into evidence

In summary, in utero PCP exposure is associated with a high incidence of IUGR [intrauterine growth retardation], precipitate labor, meconium-stained amniotic fluid, prolonged neonatal hospitalization, and symptoms of neonatal withdrawal/ intoxication.

At the close of the fact-finding hearing, the court rendered an oral opinion in which it found the Division, by a preponderance of the evidence, had proven that Mother abused or neglected A.B. under N.J.S.A. 9:6-8.21(c)(4). The court based its decision on the "credible testimony of the expert witness, Dr. Morgan, who testified that PCP passes through the placenta when the mother uses it and it is associated with respiratory distress in newborns and premature delivery." The court noted that "[i]t was the expert's opinion that the mother's use of PCP while she was pregnant resulted in the child's premature birth. This opinion, according to the expert, was supported by the literature and the article that [the Division's attorney] quoted in her summation." The court concluded that "[M]other's use of PCP was grossly and wantonly negligent resulting in actual harm to the child, in that [A.B.] was born prematurely and suffered numerous medical complications for which there was no other medical explanation."

Immediately following the fact-finding hearing, the trial court conducted a compliance hearing in which it returned physical custody of A.B. to Mother. Four months later, Mother regained physical and legal custody of A.B. On September 10, 2013, the court terminated the litigation, finding that Mother "has been providing appropriate care to [A.B.]" and "has been compliant with the Division." Mother appeals the finding she abused or neglected A.B.

II.

On appeal, we must "'defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010). "Because of the Family Part's special jurisdiction and expertise in family matters, we accord particular deference to a Family Part judge's fact-finding." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We must examine "whether there was sufficient credible evidence to support the trial court's findings." M.C. III, supra, 201 N.J. at 342. "We will not overturn a family court's fact-findings unless they are so 'wide of the mark' that our intervention is necessary to correct an injustice." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). We must hew to that standard of review.

In a fact-finding hearing under N.J.S.A. 9:6-8.44, "any determination that the child is an abused or neglected child must be based on a preponderance of the evidence," N.J.S.A. 9:6-8.46(b), and only "'competent, material and relevant evidence' can be admitted at the hearing," N.J. Dep't of Children & Family Servs. v. A.L., 213 N.J. 1, 18 (2013). Under N.J.S.A. 9:6-8.21(c)(4), the definition of an abused or neglected child includes

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 . . . (b) 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[.]

Mother argues that the evidence was insufficient to support a finding of abuse or neglect under this subsection. She does not dispute that her illegal use of PCP while pregnant with A.B. was "grossly negligent or reckless." N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 306 (2011); cf. N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165, 183-84 (2014). Instead, she contends the Division has not sufficiently demonstrated A.B. suffered harm as a result of her PCP use during pregnancy. We disagree. The evidence amply supported the trial court's fact-findings.2

Mother notes 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." A.L., supra, 213 N.J. at 23; see also N.J. Div. of Youth & Family Servs. v. N.D., 435 N.J. Super. 488, 494 (App. Div. 2014). 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; the statute "addresses harm to a child, not a fetus." A.L., supra, 213 N.J. at 8. "The statute does not cover a past risk of harm during pregnancy, which did not materialize." Id. at 22.

The evidence here is quite different than in A.L. In A.L., it was conceded there was no actual harm to the newborn who, despite testing positive for cocaine, was otherwise born healthy and discharged from the hospital after only two days. Id. at 8-10. Further, the Division presented no expert or other testimony to show risk of harm. Id. at 16-17, 28.

Moreover, our Supreme Court made clear in A.L., "[i]f 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. "The Division can show that a newborn has been impaired in a number of ways." Id. at 22. "[T]he 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, convulsions, or tremors." Id. at 22-23.

As A.L. and N.D. emphasize, "'expert testimony may be helpful'" to show harm from drug use during pregnancy. N.D., supra, 435 N.J. Super at 496 (quoting A.L., supra, 213 N.J. at 28). A "qualified expert" can interpret whether a newborn's "premature delivery and low birth weight . . . [were] related to [Mother's] ingestion" of illegal narcotics. Id. at 496-97.

Here, Dr. Morgan testified at length that Mother's PCP use during pregnancy was the likely cause of A.B.'s premature birth, and her many medical complications which resulted in prolonged hospitalization. Moreover, at birth, A.B. had several of the actual harms outlined in A.L. and N.D. Her medical records document that she was born prematurely after only approximately twenty-five weeks gestation, weighed less than two pounds, was in respiratory distress and required a ventilator to breathe, experienced "jerky movements," and was hospitalized for nearly three months.

The evidence thus demonstrated Mother's ingestion of PCP caused her to give birth to A.B. prematurely, leading to multiple severe medical problems for A.B. This was itself sufficient to show harm under A.L. and N.D. Thus, the Division sufficiently established, through credible expert testimony, that Mother's PCP use more likely than not resulted in cognizable harm to A.B.

Mother argues because A.B.'s urine did not test positive for drugs, A.B. did not show clear symptoms of withdrawal, and A.B. was not born addicted, Mother cannot be found to have abused or neglected her.3 However, as set forth above, a positive drug test, addiction, or withdrawal are not the only ways to show harm. A.L., supra, 213 N.J. at 22-23; N.D., supra, 435 N.J. Super. at 494-95 (holding that "[t]he absence of withdrawal symptoms should not be [11] viewed as an indication that no harm has been done").

Mother cites her claim in the Division's investigative summary that on the day before birth, a doctor told her she had a mass on her uterus and she would likely give birth early as a result. She provided no expert testimony or medical documentation in support of that claim, and no evidence that offered any other explanation for A.B.'s extremely premature birth. By contrast, Dr. Morgan's expert opinion was that the premature birth was due to her use of PCP during pregnancy, including the day before she gave birth.

The trial court could properly rely on that expert testimony. Unlike the trial court in A.L., the trial court here did not "fill in missing information on [its] own or take judicial notice of harm." A.L., supra, 213 N.J. at 28. The trial court appropriately made a "fact-sensitive" inquiry that "turn[ed] on particularized evidence." Ibid.

III.

Mother next argues the family court erred in relying on Dr. Morgan's "flawed" expert opinion that "PCP passes through the placenta when the mother uses it and it is associated with respiratory distress in newborns and premature delivery." It is not clear whether Mother is challenging the admissibility, credibility, or weight of Dr. Morgan's testimony.

Mother contends Dr. Morgan is not a prenatal drug expert, but as Dr. Morgan testified during voir dire, such a specialty does not exist. Moreover, "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).

Mother also argues that because Dr. Morgan never examined A.B., he was not qualified to testify as to her condition. However, Dr. Morgan testified that he relied on the following documents to formulate his opinion: the Department of Child and Families Notice Of Emergency Removal, the State of New Jersey Department of Children and Families screening summary, Jersey City Medical Center certified medical records of Mother and of A.B., and the discharge medical records of A.B. from the NICU at St. Joseph's Medical Center. As Dr. Morgan based his opinion on the medical documentation, "[p]hysical examination of [A.B.] was not a prerequisite for this testimony." Buckelew v. Grossbard, 87 N.J. 512, 529-30 (1981); see N.J.R.E. 703. Accordingly, we do not believe the trial court committed a clear abuse of discretion in permitting Dr. Morgan to offer expert testimony.

Mother also faults Dr. Morgan's reliance on the PCP v. Cocaine Use article, arguing it suffers from several fatal flaws. First, Mother argues the article is not directly on point because it is a study comparing the effects of cocaine and PCP on newborns, not a study about whether prenatal PCP use will conclusively harm a newborn. Nonetheless, the article is highly relevant because one of its purposes "was to further delineate the perinatal complications of PCP use[.]" Although the study did not concentrate solely on the prenatal effect of PCP use on newborns, that was a pivotal focus of the article.

Second, Mother argues that unlike the subjects in the study, she received adequate prenatal care. The article does state that "[n]one [of the subjects] had adequate prenatal care" and a "large percentage received no care." However, Mother did not identify, quantify, or qualify the prenatal care she received. Her attempt to distinguish the article thus lacks evidentiary support.

Third, Mother complains some of the subjects in the study used other drugs, thus invalidating the study and making it inapplicable to her. The authors of PCP v. Cocaine Use stated "members of the PCP group intermittently used a wider variety of drugs," including "cocaine, heroin, Ritalin, and Valium." The authors acknowledged the "confounding variable" of "polydrug abuse" of those drugs "may make it difficult in determining the exact incidence of IUGR due to the pharmacologic effects of PCP alone." However, the authors also explained that "[p]atients with screens positive for PCP and [those] other drugs were not included in order to minimize the effects of polydrug use." Further, "only two patients, both PCP users, gave a history of significant use of another drug [other than marijuana]." The authors explained that "concomitant marijuana use is so common among PCP addicts that it must be considered a part of the clinical picture of PCP use." As Mother admitted to smoking marijuana along with PCP, she cannot argue she is beyond the bounds of the authors' "clinic picture of PCP use."

Fourth, Mother points out that the study did not use a control group of non-drug users, acknowledged the "sample size is small enough to raise the possibility of beta errors," and failed to account for past medical history including chromosomal and hereditary factors. She also argues because the study was conducted between 1982 and 1988, it neglects nearly three decades of medical advancement. These criticisms of the study go to its credibility and weight. As it is not this court's role to evaluate the credibility of the evidence on appeal, we defer to the family court's "assessment of individual pieces of evidence." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 582 (App. Div. 2010); see also N.J. Div. of Youth & Family Services v. R.G., 217 N.J. 527, 552 (2014). Further, "[b]ecause 'the weight to be given to the evidence of experts is within the competence of the fact-finder,' we discern no reason to interfere with the court's finding." N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 74 (App. Div. 2010) (citation omitted).

Moreover, "[c]ourts can accept scientific theories as reliable when they are based on a sound methodology that involves 'data and information of the type reasonably relied on by experts in the scientific field.'" A.L., supra, 213 N.J. at 28. Dr. Morgan testified that although he was not personally familiar with the medical journal that printed PCP v. Cocaine Use, "[i]t is a reputable publisher," and he "would have to assume that it would be accepted as accurate medical information" because it is what "the National Institute of Health" and "the Academies of Medicine . . . would rely upon." As there appears to be "'general acceptance . . . within the relevant scientific community,'" the court did not err in allowing Dr. Morgan to reference the article. Ibid. (quoting State v. Henderson, 208 N.J. 208, 248 (2011)).

Finally, Mother cites some confusion in jargon. Dr. Morgan's letter report to the Division, which was introduced into evidence, accurately stated that the article found "that 43% of the PCP group had precipitate labor (duration of labor less than or equal to four hours)." Dr. Morgan's direct testimony also accurately referenced the article's reference to precipitate labor. However, during cross-examination, the words "precipitate" and "premature" were used interchangeably, which was reflected in the family court's opinion.

In any event, as was clear on direct and in his letter report, Dr. Morgan primarily based his opinion that Mother's PCP use caused her premature delivery of A.B. on the medical records and on his own experience in thousands of pregnancies involving illicit drug use. The court primarily relied on Dr. Morgan's opinion, not the snippet of the article read into evidence. The court thus did not abuse its discretion in admitting and crediting Dr. Morgan's opinion, particularly as Mother presented no contrary expert testimony or medical documentation.

Affirmed.

1 The complaint was filed by the Division of Youth and Family Services. In June 2012, it was renamed the Division of Child Protection and Permanency. L. 2012, c., 16, eff. June 29, 2012. We will refer to it as the Division.

2 The Division additionally argued A.B. suffered a substantial risk of harm due to Mother's continued abuse of PCP and marijuana after A.B.'s birth. However, the trial court did not reach that issue in its decision, and we need not do so on appeal.

3 Mother also contends A.B.'s meconium did not test positive for drugs. However, although a meconium test was ordered, the record contains no information about the results.