February 7, 2011
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF J.S., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-97-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2010
Before Judges Fuentes, Gilroy and Ashrafi.
Defendant T.S. appeals from the judgment of the Family Part finding that her now two-year-old son J.S. was abused or neglected within the meaning of N.J.S.A. 9:6-8.21. We affirm.
J.S. was born approximately six weeks premature. He is T.S.'s first-born child.*fn1 The day after his birth, the Division of Youth and Family Services (DYFS or Division) received a referral from a staff member at the hospital where J.S. was born indicating that both T.S. and J.S. had tested positive for opiates and benzodiazepines and that the medical staff was monitoring J.S. for possible opiate withdrawal. When the Division caseworker interviewed T.S., she admitted to using Percocet, Roxycodone, and Suboxone during her pregnancy. T.S. purchased these narcotic medications illicitly without a prescription, and presumably for a non-medically valid reason, two weeks before J.S. was born.
In the course of investigating the hospital's referral, the Division discovered that T.S. had tested positive for opiates and/or benzodiazepines on several occasions during her pregnancy. The medical staff attending J.S. advised the Division that the infant had shown signs of opiate withdrawal. T.S. also disclosed to the medical staff that she has had a history of mental health issues, including panic attacks and post-traumatic stress disorder.
DYFS case worker Jaime Maronski was assigned to follow up on the hospital's referral. At a meeting she had with T.S. at the hospital, Maronski confirmed that T.S. had a history of opiate abuse. After being drug-free for approximately eighteen months, T.S. relapsed during the last two weeks of her pregnancy. She had stopped taking Roxycodone (a/k/a Oxycodone) a few days before delivery, and then began taking Suboxone*fn2 to cope with the symptoms of withdrawal. She was also taking Xanax, a medication she alleged had been prescribed to her before she was pregnant. Her history of mental health issues included depression, post traumatic stress disorder, anxiety, and panic attacks.
Maronski discussed with T.S. the possibility of developing a "Safety Protection Plan" (SPP), under which relatives would supervise her contacts with J.S. at all times, thus eliminating the need for an emergency removal of J.S. These discussions led to an SPP through which the child's maternal grandparents agreed to supervise all contacts between their daughter and grandson. However, given T.S.'s history of substance abuse and mental health issues, the Division still believed J.S. was at risk of abuse or neglect and thus intended to obtain formal custody of the child.
J.S. was discharged from the hospital twelve days after his birth. In accordance with the SPP, he was placed in the home of his maternal grandparents, where T.S. also resided. Also as anticipated, the Division filed a complaint and order to show cause seeking care and supervision of J.S.
Acting through her attorney, defendant consented to placing J.S. under the care and supervision of the Division. The court granted the Division's application and ordered, in accordance with the SPP, that all contact between defendant and J.S. be supervised by the maternal grandparents or another Division-approved supervisor.
The court conducted a fact-finding hearing on July 29, 2009. Although defendant could not attend due to complications with her second pregnancy, her counsel appeared on her behalf and consented to waive her appearance. The Division's case documented defendant's use of narcotic medication during her pregnancy with J.S. and how it affected the child after his birth. Because the child had tested positive for opiates, hospital records showed that he was closely monitored to determine whether any withdrawal symptoms required medical intervention.
Hospital records described the procedure used to assess the child's withdrawal as Neonatal Abstinence Score (NAS) Sheets. Through this approach, the medical staff evaluated signs and symptoms of withdrawal grouped into three categories of bodily systems affected: (1) central nervous system disturbances; (2) metabolic/vasomotor/respiratory disturbances; and (3) gastrointestinal disturbances. Although NAS evaluations of J.S. conducted from October 30 to November 3, 2008, detected signs of withdrawal, the symptoms were not severe enough to require medical intervention.
The Division also called caseworker Maronski to testify about her interactions with defendant. Despite defense counsel's objection, Maronski also testified concerning her understanding of the medical protocol used by the hospital staff to monitor the extent of the child's withdrawal symptoms. Although this witness may not have been competent to testify about this subject matter, the trial court specifically limited the admissibility of her testimony to the witness' personal understanding, and not as evidence establishing the child's medical condition. We thus view any error associated with Maronski's testimony as legally inconsequential.
Based on this evidence the court found that defendant admitted to using, shortly before the birth of J.S., narcotic medications which she acquired illicitly without a prescription and for a medically invalid reason. Urine toxicology records admitted into evidence also showed that J.S. had tested positive for opiates and benzodiazepines. Critical to the issue of abuse, the court found that the Division had proven that J.S. suffered withdrawal symptoms after his birth. The trial judge made the following statement in support of this finding:
It does appear that the use of the NAS Scoring System was a result of the concern of the hospital that the baby was, in fact, suffering some withdrawal, although it does appear that it was minor in nature since there were no medications involved. Specifically as was pointed out, the baby had mild tremors and increased muscle tone, which . . . Miss Maronski described as stiffening up and not wanting to be touched because of the pain involved in that.
On these grounds, the court concluded that defendant had abused and neglected J.S. within the meaning of N.J.S.A. 9:6-8.21, in that she "placed [him] in an imminent danger of becoming impaired by unreasonably inflicting a substantial risk of harm by the use of these drugs."
Following a compliance hearing, the court entered an order on March 16, 2010, terminating the litigation. The court found that defendant had complied with all Division-ordered conditions and the child was no longer in need of Division supervision. Defendant now appeals from the court's finding that J.S. was an abused or neglected child.
Defendant argues that the trial court's finding that she abused and neglected her son was against the weight of the evidence. Specifically, she argues that the trial court erred in admitting J.S.'s hospital records and the testimony of the Division caseworker regarding those records, which she characterizes as inadmissible hearsay. She further argues that the evidence failed to prove that she caused her son any harm.
We reject these arguments. Our review of the Family Part's factual findings in a Title 9 abuse and neglect case is limited to determining whether such findings are supported by adequate, substantial, and credible evidence. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002). We are bound to uphold these findings unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). In going about our review, we are also mindful that our Supreme Court has recognized that Family Part judges have special expertise and experience in dealing with the unique cases that fall under their jurisdiction. Cesare v. Cesare, 154 N.J. 394, 413 (1998).
Addressing directly defendant's argument concerning the admissibility of the child's hospital records, we note that defendant did not object to the introduction of these records before the trial court. We thus review the trial court's ruling under the plain error standard. This requires us to find that any error associated with the admission of these records had the clear capacity of producing an unjust result. R. 2:10-2.
We are satisfied, however, that the court did not err in admitting the child's hospital records. N.J.S.A. 9:6-8.46(a)(3) provides, in relevant part, that in any hearing under this Act: any . . . record . . . made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any hospital . . . shall be admissible in evidence in proof of that condition, act, transaction, occurrence, or event, if the judge finds that it was made in the regular course of the business of any hospital . . . and that it was in the regular course of such business to make it, at the time of the condition, act, transaction, occurrence, or event, or within a reasonable time thereafter . . . .
Here, the child's medical records contained a cover letter from a member of the hospital's staff indicating that "[t]he original records were generated in the regular course of business at/or near the time of the matter in question." This statement establishes the necessary foundation for the admissibility of the records under N.J.S.A. 9:6-8.46(a)(3).
With respect to the testimony of the Division's caseworker, the record shows that the trial judge was keenly aware of the limited evidential utility of her testimony. There is no basis to conclude that the judge deviated from his ruling in reaching his ultimate judgment concerning defendant's conduct.
Based on the evidence presented, we are satisfied that the trial court correctly found that defendant committed an act of abuse by exposing her son to narcotic medication that impaired his physical well-being. In In Re Guardianship of K.H.O., 161 N.J. 337, 349-50 (1999), the Court held a parent liable in the context of a termination of parental rights proceeding when her drug use resulted in her child being born addicted to drugs. Here, although the child was not born addicted to drugs, defendant's drug use before her son's birth directly caused the child's post-birth withdrawal symptoms. Although these symptoms were not severe enough to require medical intervention, they undeniably impaired his health. As such, defendant's actions constitute abuse within the meaning of N.J.S.A. 9:6-8.46(a)(3).
ASHRAFI, J.A.D., concurring in the result.
Although I agree the Family Part had sufficient evidence to conclude that defendant committed an act of abuse or neglect of her baby by illegally taking prescription medications she had purchased "off the street" in the days before the baby's premature birth, I cannot join in the majority's approval of the manner in which the Division of Youth and Family Services (DYFS) presented its case at the fact-finding hearing.
DYFS called only one witness at that hearing, its case worker, Jaime Maronski. Counsel for defendant objected to questions put to Maronski asking her to interpret the hospital records, in particular the Neonatal Abstinence Score (NAS) sheets. Defense counsel argued that Maronski was not medically qualified to testify about the meaning of the notations on that sheet and that her understanding was merely repetition of the hearsay statements of hospital nurses. After allowing further questioning of Maronski to determine the scope and source of her knowledge, the judge ruled that he would allow limited testimony about the NAS sheets only to establish Maronski's understanding of the purpose of those hospital records as they relate to the baby's condition. The judge stated further: "I'm not going to glean from her testimony that the child was going through withdrawal."
Also, defense counsel had not objected to admission of the entirety of the baby's hospital chart, but he did object to reliance on the hospital record of the urine toxicology screen, which indicated positive results of the baby for opiates and benzodiazepines. The urine screening document specifically stated:
All positives are preliminary and will be confirmed by a reference laboratory. Please refer to the specific drug confirmation for final result. . . . Results should be used for medical purposes only and not for any legal and/or employment evaluation purposes.
The trial judge was justifiably troubled by the lack of medical testimony, or clear and unequivocal statements in the hospital records, indicating that the baby was born addicted to drugs or had undergone symptoms of withdrawal. Nevertheless, in his final ruling, the judge accepted the urine toxicology screen as sufficient proof of the baby's exposure to opiates and benzodiazepines because the rest of the records established that the hospital treated the baby on the basis of that diagnosis. In the same way, the judge concluded that the hospital's creating the NAS records indicated its concern that the baby was suffering some symptoms of withdrawal, although there was no dispute that the withdrawal was minor and did not require medication. The circumstantial evidence from the hospital records, together with defendant's admission to the case worker that she had used Percocet, Roxycodone, Suboxone, and Xanax in the days before the baby's birth and that the baby was displaying signs of withdrawal, was sufficient to conclude that the baby had been placed at risk of harm by defendant's pre-birth drug use. I would affirm the judgment of the Family Part because I agree with that conclusion.
However, without the probative weight of defendant's admissions, DYFS's reliance on the urine toxicology screen and the NAS sheets would not have been sufficient to prove its case. Although admissible under N.J.R.E. 803(c)(6) as business records of the hospital, and also admissible specifically under N.J.S.A. 9:6-8.46(a)(3) as hospital records related to abuse or neglect proceedings, the records by themselves did not prove that the baby tested positive for drugs or exhibited symptoms of withdrawal. DYFS should not assume that such records speak for themselves in sufficiently clear terms that it need not be prepared to present a qualified witness to explain them in the courtroom.