NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.C.

 

(NOTE: The status of this decision is Published.)

                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4902-17T1

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

J.C.,

          Defendant-Appellant,

and

A.R.,

     Defendant.
_____________________________

IN THE MATTER OF G.M.R.,

     a Minor.
_____________________________

                    Argued November 13, 2019 – Decided December 12, 2019

                    Before Judges Fisher, Accurso and Gilson.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Bergen County
            Docket No. FN-02-0251-17.

            David Anthony Gies, Designated Counsel, argued the
            cause for appellant (Joseph E. Krakora, Public
            Defender, attorney; David Anthony Gies, on the briefs).

            Jason Wade Rockwell, Assistant Attorney General,
            argued the cause for respondent (Gurbir S. Grewal,
            Attorney General, attorney; Kenneth M. Cabot, Deputy
            Attorney General, on the brief).

            Cory Hadley Cassar, Designated Counsel, argued the
            cause for minor (Joseph E. Krakora, Public Defender,
            Law Guardian, attorney; Cory Hadley Cassar, on the
            brief).

PER CURIAM

      A mother appeals from an order finding that she abused or neglected her

infant daughter by using unprescribed drugs while she was pregnant with the

child. At birth, the child suffered from withdrawal symptoms and had to be

treated in a hospital for several weeks. We affirm.

                                       I.

      J.C. (Joyce), the mother, and A.R., the father, are the parents of G.M.R.

(Gen), who was born in March 2017. 1 At birth, a toxicology analysis showed



1
   We use initials and fictitious names to protect privacy interests and the
confidentiality of the record. R. 1:38-3(d)(12).
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that Gen had methadone, benzodiazepines, tetrahydrocannabinol (THC), and

cocaine in her blood.     The child was diagnosed with neonatal abstinence

syndrome (NAS) and treated for withdrawal symptoms for several weeks in a

neonatal intensive care unit at the hospital where she was born.

      On April 21, 2017, after Gen was discharged from the hospital, the

Division of Child Protection and Permanency (the Division) conducted an

emergency removal and placed her in the care of a family member. Thereafter,

the Division was granted custody of Gen, and Joyce was charged with child

abuse or neglect. A.R., the father, was not charged and no findings of abuse or

neglect were made against him.

      A fact-finding hearing was conducted on July 24, 2017. The Division

entered a number of exhibits into evidence and called two witnesses: Laurie

Laverty, a Division caseworker, and Stephen Percy, M.D., a pediatrician who

treated Gen after her birth. Joyce did not testify.

      Documents submitted into evidence established that Joyce overdosed on

heroin in November 2016, while pregnant with Gen.          At that time, Joyce

admitted that she was using heroin daily and crack cocaine twice a week.

Accordingly, she was referred to a treatment program.




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         Laverty testified that she met with Joyce at the hospital on the day of Gen's

birth.     Joyce admitted she had tested positive for use of methadone,

benzodiazepines, cocaine, and marijuana. She claimed that she was prescribed

methadone through the Monsignor Wall treatment program.

         The court twice entered orders before the fact-finding hearing directing

Joyce to sign and give a medical release to the Division. Moreover, Laverty

testified that Joyce told her she had signed a release with Monsignor Wall

granting the Division access to information pertaining to her treatment program.

Joyce, however, never signed such a release. Accordingly, Laverty testified that

the Division could not confirm that Joyce had been in a methadone treatment

program and that the methadone was being administered with medical oversight.

         Dr. Percy was qualified as an expert in pediatrics, including pediatric

critical care. He testified that Gen was diagnosed with NAS and described her

symptoms as including tremors, exaggerated moro reflex, and increased

respiratory rate.

         Dr. Percy also stated that Gen was treated for methadone withdrawal in

both the intensive care unit and the general pediatric area for several weeks. He

explained that an infant withdrawing from benzodiazepines would exhibit

similar symptoms to an infant withdrawing from an opioid, such as methadone .


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Dr. Percy stated that he could not offer an opinion as to whether Gen's

withdrawal symptoms were caused by just methadone or benzodiazepines

because there is "a fair amount of overlap" between the symptoms caused by

each substance.

      The family court announced its ruling on the record on October 18, 2017.

On that same day it entered an order finding that Joyce had abused or neglected

Gen. The court found the testimony of both Laverty and Dr. Percy credible.

Based on that testimony, as well as the documents that had been entered into

evidence, the court found that Gen's physical condition had been impaired

because of Joyce's use of unprescribed drugs, including benzodiazepines,

cocaine, marijuana, and methadone. In that regard, the court found that Gen had

"[u]nquestionably . . . suffered actual harm."

      In April 2018, the family court accepted the Division's permanency plan

to terminate Joyce's parental rights so that Gen can be adopted. The Division,

thereafter, filed a guardianship complaint, and the court terminated this Title 9

matter.

                                       II.

      Joyce now appeals from the October 18, 2017 order finding that she

abused or neglected Gen.      She makes a series of related and overlapping


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arguments, contending (1) the Division did not prove that her prenatal use of

drugs caused harm to Gen; (2) the court improperly shifted to her the burden to

show that she participated in a methadone treatment program; and (3) the

Division, through the testimony of Dr. Percy, failed to prove that any drugs other

than methadone caused Gen to have withdrawal symptoms. We reject all of

those arguments because the evidence at the fact-finding hearing refutes each of

Joyce's contentions.

      The scope of our review of an appeal from an order finding abuse or

neglect is limited. N.J. Div. of Child Prot. & Permanency v. Y.A.,  437 N.J.

Super. 541, 546 (App. Div. 2014) (citing and quoting N.J. Div. of Youth &

Family Servs. v. I.Y.A.,  400 N.J. Super. 77, 89 (App. Div. 2008)). We will

uphold the trial judge's factual findings and credibility determinations if they

are supported by "adequate, substantial, and credible evidence." N.J. Div. of

Youth & Family Servs. v. G.L.,  191 N.J. 596, 605 (2007) (first citing In re

Guardianship of J.T.,  269 N.J. Super. 172, 188 (App. Div. 1993); then citing

Cesare v. Cesare,  154 N.J. 394, 411-13 (1998)). Accordingly, we will only

overturn the judge's findings if they "went so wide of the mark that th e judge

was clearly mistaken." Ibid. (citing J.T.,  269 N.J. Super. at 188-89). We do not,

however, give "special deference" to the trial court's interpretation of the law.


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D.W. v. R.W.,  212 N.J. 232, 245 (2012) (citing N.J. Div. of Youth & Family

Servs. v. I.S.,  202 N.J. 145, 183 (2010)). Consequently, we apply a de novo

standard of review to legal issues. Id. at 245-46.

      The adjudication of abuse or neglect is governed by Title 9, which is

designed to protect children.  N.J.S.A. 9:6-1 to -8.114. Under Title 9, a child is

abused or neglected if:

            [a] parent or guardian . . . creates or allows to be created
            a substantial or ongoing risk of physical injury to such
            child by other than accidental means which would be
            likely to cause death or serious or protracted
            disfigurement, or protracted loss or impairment of the
            function of any bodily organ . . . or a child whose
            physical, mental, or emotional condition has been
            impaired or is in imminent danger of becoming
            impaired as the result of the failure of his parent or
            guardian . . . to exercise a minimum degree of care . . .
            in providing the child with proper supervision or
            guardianship, by unreasonably inflicting or allowing to
            be inflicted harm, or substantial risk thereof . . . .

            [ N.J.S.A. 9:6-8.21(c)(2), (c)(4)(b).]

      The protection of the abuse and neglect statute "is limited to the condition

of a child after birth." N.J. Dept. of Children v. A.L.,  213 N.J. 1, 22 (2013)

(citing N.J. Div. of Youth and Family Servs. v. L.V.,  382 N.J. Super. 582, 590

(Ch. Div. 2005)).

            Therefore, the primary question under Title 9 is
            whether [the child], as a newborn, "ha[s] been

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             impaired" or was in "imminent danger of becoming
             impaired" as a result of his [or her] mother's failure to
             exercise a minimum degree of care by unreasonably
             inflicting harm or allowing a "substantial risk" of harm
             to be inflicted.

             [Ibid. (quoting N.J.S.A. 9:6-8.21(c)(4)(b)).]

"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.

      Nevertheless, "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." 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.,  213 N.J. at 22-23 (citing

In re Guardianship of K.H.O.,  161 N.J. 337, 349-50 (1999)). When, as here,


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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." Id. at 23.

      Our Supreme Court has clarified that, under certain circumstances, proof

of prenatal drug use coupled with the fact that a newborn suffered withdrawal

symptoms may not be sufficient to establish abuse and neglect. See N.J. Div. of

Child Prot. & Permanency v. Y.N.,  220 N.J. 165, 168 (2014).                  Those

circumstances require proof that the mother was (1) participating in a bona fide

treatment program, (2) prescribed methadone by a licensed healthcare

professional, (3) after full disclosure. Ibid. In that regard, 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 [the mother]
            unreasonably inflicted harm on her newborn and did so,
            at least, by acting with gross negligence or
            recklessness.

            [Id. at 168-69.]

      Joyce's drug use during pregnancy actually harmed Gen. The child tested

positive for methadone, benzodiazepines, cocaine, and THC, and was not born

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healthy. Instead, Gen suffered from withdrawal symptoms that included tremors

and respiratory problems. She was hospitalized for several weeks and treated in

an intensive care unit.

      Joyce contends that, pursuant to Y.N., the finding of abuse and neglect

must be reversed. Joyce's reliance on Y.N. is misplaced for two reasons.

      First, in Y.N., the sole drug identified as causing the newborn's

withdrawal symptoms was methadone. Id. at 170. The Court accepted the

mother's testimony that she was taking methadone as part of a treatment program

she entered prior to giving birth. Id. at 169-70. Here, in contrast, there is no

credible evidence in the record that Joyce was prescribed methadone in

conjunction with a bona fide treatment program or that her use of methadone

during her pregnancy was authorized by a qualified physician after full

disclosure.

      Second, Gen had additional substances in her system that caused her harm

or threatened to cause her harm. In addition to methadone, at birth Gen also had

benzodiazepines, cocaine, and THC in her blood. Dr. Percy testified that the

withdrawal symptoms for methadone and benzodiazepines "overlapped" and

therefore Gen's symptoms could have been caused by the benzodiazepines.




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Moreover, the evidence that Joyce used benzodiazepines, cocaine, and

marijuana while pregnant exposed Gen to a substantial risk of harm.

      In short, Joyce's first and third arguments are rebutted by the substantial

credible evidence presented at the fact-finding hearing. The family judge found

that evidence credible and reliable and based her findings on that evidence. We

discern no grounds for disagreeing with the trial court's findings.

      We also reject Joyce's argument that the family court improperly shifted

a burden to her. There was no burden shifting. Instead, the Division presented

strong evidence that Joyce used unprescribed drugs without prescriptions while

pregnant with Gen, and those drugs caused actual harm to Gen. In response,

Joyce attempted to argue that her use of at least one of the drugs – methadone –

was prescribed by a bona fide treatment program. Joyce, however, did not

present any evidence that she was in such a treatment program.           Just as

importantly, Joyce prevented the Division from contacting her treatment

program to determine whether she had been properly prescribed methadone by

a licensed healthcare professional after full disclosure.

      Affirmed.




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