January 14, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,*FN1 PLAINTIFF-RESPONDENT,
M.K., DEFENDANT-APPELLANT, AND N.S., DEFENDANT.
IN THE MATTER OF M.S., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FN-03-86-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2012 - Before Judges Grall and Accurso.
Following a fact-finding hearing, defendant M.K. appeals from an order of the Family Part finding that she abused and neglected her new-born daughter Mattie*fn2 in violation of N.J.S.A. 9:6-8.21. Because we agree that Mattie's medical records, admitted without objection, and defendant's admissions of illicit drug use throughout her pregnancy provided substantial credible evidence to support the trial judge's finding of abuse and neglect, we affirm.
On September 28, 2011, the Division of Youth and Family Services (Division) received a child protective services referral from Virtua Memorial Hospital reporting that defendant, twenty-five years old, had given birth to her first child, Mattie, and that both mother and daughter had tested positive for opiates. Mattie's meconium also revealed the presence of buprenorphine, a prescription medication sold under the brand name of Subutex or Suboxone (when combined with naloxone), to relieve the symptoms of opiate withdrawal.
A Division caseworker was dispatched to interview defendant, who admitted using Vicodin, Subutex, and Percocet throughout her pregnancy. Defendant explained to the caseworker that she had been prescribed Percocet for pain related to kidney stones and Vicodin for tooth pain and that she had used both medications for the first five months of her pregnancy, after which she stopped. She began to have severe back pain when she was six and a half months pregnant, however, and again started taking Vicodin and Percocet, which she acquired from friends. Defendant admitted to taking two Suboxone tablets two weeks before Mattie was born and two Percocet three days before Mattie's birth. In response to the caseworker's inquiry regarding the needle tracks on defendant's arms, defendant also acknowledged a history of intravenous heroin use prior to learning of her pregnancy. Defendant also told the caseworker that she "did Roxys" four times during her pregnancy, most recently a month before, explaining that she would crush Roxicet (oxycodone and acetaminophen) tablets, mix it with water, and inject it into her arms. The caseworker was subsequently advised by a nurse in the hospital's special care nursery that Mattie had been started on phenobarbine morphine for withdrawal symptoms the day she was born.
The Division filed a verified complaint for custody of Mattie a week later, while the baby was still undergoing treatment at the hospital.*fn3 Upon Mattie's release from the hospital, fourteen days after her birth, she was placed with defendant's parents, and defendant began drug treatment.
At the fact-finding hearing four months later, defendant stipulated to the admissions she made regarding her drug use during her pregnancy and did not object to the admission into evidence of the Division's two screening summaries, the Division's investigation report, and four pages of Mattie's medical record certified by the record custodian for Virtua Memorial Hospital. The Division presented the only witness to testify, the caseworker responsible for the file, who had not been the caseworker who responded to the hospital and conducted the initial investigation that led to the filing of the complaint.
The caseworker testified very briefly about the contents of the Division's investigation report. When she began to recount the statements of hospital personnel regarding Mattie's symptoms and treatment, counsel for defendant objected on hearsay grounds. After briefly arguing the issue, counsel for the Division agreed to rely on the certified medical record and move on. A few moments later, the issue arose again when the caseworker was asked to review Mattie's medical record and relate the condition for which medication had been prescribed. Defense counsel objected to the caseworker testifying to the reasons certain medications had been prescribed. The deputy renewed her argument that defendant had consented to the admission of the medical record. Defense counsel reiterated that he had no objection to the admission of the medical record and acknowledged that the record reflected that Mattie had been prescribed certain drugs, but objected to the caseworker repeating why those medications had been prescribed. The court instructed the deputy to direct the witness to specific sections of the medical record, "which [defense counsel] doesn't object to, and rely upon that." The deputy did so and the testimony was quickly concluded.
Relying on the evidence in the record, Judge Philip Haines found "that [Mattie] tested positive for opiates at birth, that [defendant] admitted to taking Vicodin, Percocet, and Subutex during her pregnancy, that both [defendant] and [Mattie] . . . tested positive for opiates, and [Mattie had also] tested positive for Subutex." Referring specifically to Mattie's medical record in evidence, the judge found that Mattie had been diagnosed with Neonatal Abstinence Syndrome, that she showed signs of withdrawal, and that she was prescribed phenobarbital and morphine. Finding "an easy inference" that the morphine and phenobarbital were connected to Mattie's symptoms of withdrawal, the judge concluded that the Division had proved abuse and neglect by a preponderance of the evidence in accordance with In re Guardianship of K.H.O., 161 N.J. 337, 349 (1999).
After the fact-finding hearing, defendant continued in drug treatment. She regained legal and physical custody of Mattie in October 2011, following a disposition hearing terminating the litigation. This appeal followed.
On appeal, defendant renews her argument to the trial court that Mattie's medical record lacked substantial detail necessary to support a finding of abuse and neglect and that an expert witness was required to explain its meaning. We disagree.
Our review of the trial court's factual findings in a Title 9 abuse and neglect proceeding is limited to determining whether those findings are supported by adequate, substantial, and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002). If the findings have such support in the record, we are bound by them in deciding the appeal. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
Here, Mattie's medical record, on which Judge Haines relied in making his factual findings, reveals meconium stained fluid as a complication attending her otherwise normal delivery. The record states that the meconium screen was positive for opiates and buprenorphine and that Mattie was moved to the special care nursery for further management. Defendant is noted as testing positive for opiates as well. The record further notes under the heading of physical exam, "[n]eurological: [i]ncreased tone, tremor." In the clinical summary, Mattie's diagnosis is listed as "Neonatal Abstin[e]nce Syndrome ([c]onfirmed)," procedures performed include "Abstin[e]nce Scoring (14 days)," and medications include "[p]henobarbital (8 days)" and "[m]orphine (12 days)." Mattie's physical exam upon discharge notes, "[n]eurological: [n]ormal tone and reflexes for gestational age."
A review of Mattie's medical record leaves no doubt that Judge Haines' factual findings that Mattie was born testing positive for opiates and showing signs of withdrawal upon which she was diagnosed as suffering from Neonatal Abstinence Syndrome and prescribed phenobarbital and morphine to treat her withdrawal symptoms are supported by substantial, credible evidence, and are thus binding on appeal.
We are likewise not persuaded that the court erred in admitting Mattie's medical record in the absence of an expert to interpret it for the court. Because defense counsel repeatedly advised the trial judge that defendant had no objection to the Division's admission of Mattie's certified medical record, we review this claim under the doctrine of invited error. N.J.
Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340-42 (2010) (holding that where defense counsel makes strategic decision to try the case on the Division's documents instead of facing witness's direct testimony, reviewing court will not reverse in the absence of fundamental injustice).
Mattie's medical record was admissible under N.J.R.E. 803(c)(6) as a business record of the hospital, and admissible specifically under N.J.S.A. 9:6-8.46a(3) governing evidence in abuse and neglect proceedings. As in M.C. III, defendant's consent to the admission of the medical record deprived the Division of the opportunity to overcome any objection that might have been sustained by presenting a qualified witness in place of the document. M.C. III, supra, 201 N.J. at 341.
Accordingly, defendant is barred by the doctrine of invited error from now contesting the admission of Mattie's certified medical record in the absence of expert testimony to interpret it. Further, we are well satisfied that the hospital record here was sufficiently clear and unequivocal in stating that Mattie was born testing positive for opiates and buprenorphine and suffering from withdrawal symptoms for which she was prescribed phenobarbital and morphine, that no interpretation by an expert witness was necessary.
The Supreme Court in K.H.O. held that "a child born addicted to drugs and suffering from the symptoms of drug withdrawal as a result of her mother's substance abuse during pregnancy has been harmed by her mother and that harm endangers the child's health and development." K.H.O., supra, 161 N.J. at 349. Based on the evidence in the record, we are satisfied that Judge Haines correctly found that defendant committed an act of abuse by exposing Mattie to opiates and buprenorphine, causing her to suffer withdrawal symptoms at birth that impaired her physical well-being.