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New Jersey Department of Children and Families, Division of Youth and Family Services v. A.L

February 6, 2013

NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
A.L., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF T.L. AND A.D., MINORS.



On certification to the Superior Court, Appellate Division.

The opinion of the court was delivered by: Chief Justice Rabner

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized).

N.J. Div. of Youth & Family Servs. v. A.L.

(A-28-11) (068542)

Argued September 10, 2012 -- Decided February 6, 2013

RABNER, C.J., writing for a unanimous Court.

In this appeal, the Court determines whether a court can find "abuse" or "neglect" of a child under Title 9 if an expectant mother uses drugs during pregnancy but there is no evidence of actual harm when the baby is born.

A.L. gave birth to a son, A.D. Upon admission to the hospital, A.L. tested positive for cocaine. A.D.'s urine was negative for cocaine two hours after birth. A test of his meconium, or first stool, later the same day revealed the presence of cocaine metabolites. The baby's health was otherwise normal, and he was discharged from the hospital after two days. The hospital reported A.L.'s positive drug screen to the New Jersey Division of Child Protection and Permanency (formerly called the Division of Youth and Family Services) (Division), which immediately started an investigation. The Division learned that A.L. had also tested positive for marijuana in her fifth month of pregnancy. A.L. denied ever using drugs, claiming that she may have accidentally ingested cocaine when a friend spilled a bag of cocaine on her two days before A.D.'s birth and may have accidentally inhaled marijuana when she made a job-related delivery to a customer who was smoking marijuana. The Division also interviewed T.L., A.L.'s son from a different relationship, T.D., the newborn's father, and A.L.'s parents, with whom the family lived, and conducted a safety assessment at the family home. The Division concluded that the allegation of neglect against A.L. was substantiated and that a Safety Protection Plan was required.

The Division filed a verified complaint for care and supervision of A.D. and T.L. and, subsequently, moved for a finding of abuse or neglect against A.L. under N.J.S.A. 9:6-8.21. At the fact-finding hearing, the Division introduced seven documents, four of which were relevant to A.L.: (1) a Screening Summary, which summarized the hospital referral; (2) the Investigation Summary, which recounted the Division's interviews; (3) the Safety Protection Plan; and (4) the hospital records. Those documents comprise all of the evidence presented at the hearing. The Division conceded that it could not prove actual harm to the child, based on the documents, but asserted that there was a substantial risk of harm to A.D. based on A.L.'s prenatal drug use. The trial court concluded that A.L.'s "prenatal drug use, without more, when corroborated by [A.D.'s] positive meconium testing, is sufficient to establish by a preponderance of the evidence that A.D. is an 'abused or neglected child'" under N.J.S.A. 9:6-8.21(c)(4)(b). The Appellate Division affirmed the trial court's finding of abuse and neglect, concluding that "A.L.'s use of cocaine two days before A.D.'s birth created the very risk of harm that N.J.S.A. 9:6-8.21(c)(4)(b) is designed to prevent." The panel also rejected A.L.'s argument that exposure of a fetus to cocaine is not a recognized harm under Title 9, without proof of risk of harm to the child after birth. The Court granted certification. 208 N.J. 372 (2011).

HELD: The finding of abuse and neglect under Title 9 cannot be sustained because the Division failed to show actual harm or demonstrate imminent danger or a substantial risk of harm to the newborn child, which N.J.S.A. 9:6-8.21(c)(4)(b) specifically requires.

1. Title 9 governs acts of abuse and neglect against a child. It provides interim relief for children at risk and outlines the standards for abuse and neglect proceedings against parents and guardians. The focus in abuse and neglect matters is on promptly protecting a child who has suffered harm or faces imminent danger. N.J.S.A. 9:6-8.21(c)(4)(b) defines an "abused 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 . . . to exercise a minimum degree of care . . . by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . ." The Court's task in interpreting this law is to determine and give effect to the Legislature's intent. To do so, the Court looks first to the plain language of the statute. If the language is ambiguous, courts can examine extrinsic evidence for guidance. Related parts of an overall statutory scheme can also provide relevant context. (pp. 16-20)

2. The language of the abuse and neglect statute reveals that it applies to a child and not a fetus. The definitional language in N.J.S.A. 9:6-8.21 declares that an "'[a]bused or neglected child' means a child less than 18 years of age." Earlier in Title 9, the word "child" is similarly defined as "any person under 18 years of age." N.J.S.A. 9:2-13(b). Elsewhere, the Legislature explicitly extended protection to an "unborn child." N.J.S.A. 30:4C-11 authorizes the Division to provide services, with a mother's consent, in response to an application -- including "an application on behalf of an unborn child." Had the Legislature meant to apply Title 9 to an unborn child, it could have used the words it inserted at N.J.S.A. 30:4C-11. Its decision not to do so is entitled to respect. Absent evidence of clear legislative intent, court decisions in New Jersey have declined to extend the reach of a statute to an unborn child when the statute refers to a "person" or a "child." Because the abuse and neglect statute, by its terms, does not extend to a fetus, the law's protection is limited to the condition of a child after birth. The behavior of an expectant mother during pregnancy can still be relevant if it relates to a child's suffering or the risk of harm to a child after birth. (pp. 20-23)

3. The primary question under Title 9 is whether A.D., as a newborn, "ha[d] 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. See N.J.S.A. 9:6-8.21(c)(4)(b). Evidence of actual impairment to the child will satisfy the statute, but in a case where there is no such proof, the critical focus is on evidence of imminent danger or substantial risk of harm. The Division bears the burden of proof at a fact-finding hearing and must prove present or future harm to a child by a preponderance of the evidence.

N.J.S.A. 9:6-8.46(b). The Division can show actual harm to a newborn in a number of ways, including proof that a child is suffering from withdrawal symptoms at birth or evidence of other medical abnormalities. In the absence of actual harm, proof that a child's mother frequently used cocaine or other dangerous substances during pregnancy would be relevant to the issue of imminent danger and substantial risk of harm. But 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. The proper focus is on the risk of substantial, imminent harm to the child, not on the past use of drugs alone. If the Division can prove abuse or neglect, that finding has significant consequences: the child may be placed in the custody of a relative or another suitable person for a substantial period of time; the Division may bring an action to terminate parental rights relying on the Title 9 judgment; and the parent's name may be disclosed to doctors, courts, child welfare agencies, and certain employers. (pp. 23-29)

4. The Division admittedly presented no evidence of actual harm to A.D. To meet its burden of showing imminent danger and substantial risk of harm at the fact-finding hearing, the Division presented four documents that related to A.L. and the child but offered no testimony to explain them. The documents contain two critical pieces of evidence. First, they reveal that A.L. tested positive for cocaine upon admission to the hospital and tested positive for marijuana in her fifth month of pregnancy. Second, a stool toxicology report identifies the presence of the following cocaine metabolites in A.D.'s meconium: "Benzoylecgonine = 88 ng/g." That statement is not explained anywhere in the trial record. On its own, the notation does not reveal the severity or extent of the mother's substance abuse or, most important in light of the statute, the degree of future harm posed to the child. A report noting the presence of cocaine metabolites in meconium, without more, does not establish proof of imminent danger or substantial risk of harm. The fact-sensitive nature of abuse and neglect cases turns on particularized evidence. When the evidence presented does not demonstrate actual or imminent harm, expert testimony may be helpful. In many cases, an adequate presentation can be made without the use of expert testimony. (pp. 29-33)

5. Under New Jersey's child welfare laws, the Division has other ways to intervene in a timely fashion in cases like this. The Legislature provided two alternative approaches in Title 30 to address the troubling problem of drug use during pregnancy when there is insufficient proof of actual harm or imminent danger to a child: (1) the Division can offer services to expectant and new mothers under certain circumstances, with their consent, see N.J.S.A. 30:4C-11; and (2) the Division can seek a court order to intervene and require a mother to undergo treatment, or seek other relief, if the best interests of the child so require, see N.J.S.A. 30:4C-12. (pp. 34-40)

The judgment of the Appellate Division is REVERSED.

JUSTICES LaVECCHIA, ALBIN, HOENS, and PATTERSON join in CHIEF JUSTICE RABNER's opinion.

Argued September 10, 2012

CHIEF JUSTICE RABNER delivered the opinion of the Court.

This is a case of statutory interpretation. The question presented is whether a court can find "abuse" or "neglect" of a child under Title 9 if an expectant mother uses drugs during pregnancy but there is no evidence of actual harm when the baby is born. To determine the answer, we do not start with a clean slate. Instead, we interpret a comprehensive legislative scheme relating to child welfare and look to the language of the relevant statutes.

"Abuse" and "neglect" are carefully defined in the law.

N.J.S.A. 9:6-8.21(c). The statute in question addresses harm to a child, not a fetus. 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. If there is no evidence of actual harm, though, the statute requires a showing of "imminent danger" or a "substantial risk" of harm before a parent or guardian can be found to have abused or neglected a child. Ibid. (emphases added).

To meet that threshold, the New Jersey Division of Child Protection and Permanency (Division)*fn1 must present sufficient proof of harm at a fact-finding hearing in contested cases. In this case, the Division conceded that there was no evidence of actual harm to the newborn. To show risk of harm, the Division presented a series of documents but no testimony. The critical documents revealed that the mother tested positive for cocaine upon admission to the hospital. They also showed the presence of cocaine metabolites in the baby's meconium, or first stool. The baby's health was otherwise normal, and he was discharged from the hospital after two days.

We find that the records alone did not prove imminent danger or a substantial risk of harm to the newborn child. The records, without more, revealed little about the degree of future harm posed to the newborn, which is the statute's critical focus in this case. As a result, the Division did not carry its burden of proof to establish abuse or neglect under Title 9. We therefore reverse the judgment of the Appellate Division, which affirmed the trial court's finding of abuse or neglect.

In the future, the Division can prevail in Title 9 proceedings if it presents evidence of actual harm or stronger proof of imminent danger to a child, as discussed more fully below. The Legislature has also provided two additional bases to protect children in these circumstances: (1) the Division can offer services to expectant and new mothers under certain circumstances, with their consent, see N.J.S.A. 30:4C-11; and (2) the Division can seek a court order to intervene and require a mother to undergo treatment, or seek other relief, if the best interests of the child so require, see N.J.S.A. 30:4C-12.

I.

A.L. gave birth to a son, A.D., at 2:16 a.m. on September 10, 2007. When she was admitted to the hospital earlier that day, she tested positive for cocaine. The hospital tested A.D.'s urine two hours after birth, and the results were negative for cocaine. A test of A.D.'s meconium, or first stool, later the same day revealed the presence of "cocaine metabolites."

The hospital promptly contacted the Division and reported the mother's positive drug screen. In response, the Division immediately started an investigation.

We glean the following facts from the exhibits the Division introduced at a fact-finding hearing. At some point on September 10, a Division caseworker spoke with a social worker at the hospital, who reported that on May 16, 2007, A.L. had tested positive for marijuana. The hospital had tested A.L.'s urine while treating her in her fifth month of pregnancy.

Early in the afternoon of September 10, the Division interviewed T.L., A.L.'s son from a different relationship, who was then five years old. At the time, A.L., T.L., and the newborn's father, T.D., all lived with A.L.'s parents. T.L. did not identify any problems at home. The report notes that he was dressed appropriately and was well-groomed.

The Division then met with A.L. and T.D. at the hospital. A.L. denied ever using drugs. She claimed that two days earlier, she and T.D. had picked up an intoxicated friend from a bar. The friend sat in the back seat of the car. When A.L. saw the friend pull out a plastic bag that appeared to contain cocaine and start to use it, she claims that she tried to grab the bag to get rid of it. According to A.L., the bag exploded, and the cocaine spilled all over her and the car. She claimed that she may have ingested cocaine from the incident.

With regard to the positive marijuana screen four months earlier, A.L. explained that she worked at a pharmacy and had delivered medication to a customer who suffered from cancer and AIDS. A.L. claimed that the customer was smoking marijuana when she made the delivery, and she smelled the marijuana from the doorway. She said the delivery must have been the cause of the positive drug test.

T.D., in a separate interview, also denied using drugs and corroborated A.L.'s story about how she might have ingested cocaine two days before. The Division also met with A.L.'s parents, with whom she lived, and conducted a safety assessment at the family home. Among other things, the caseworker reported that the baby "was well groomed and appeared to be well cared for physically" on September 10.

The Division's Investigation Summary concluded that the allegation of neglect against A.L. was substantiated and that a safety protection plan was required. The report assessed the risk of neglect as "1," the risk level as "low," and the risk of abuse as "0." All parties agreed to a Safety Protection Plan on September 11, 2007, which required A.L.'s parents to supervise her contacts with both of her children.

Meanwhile, the hospital records for the same period describe A.D.'s condition. A "Newborn Physical Exam" reports that his Apgar scores, which measure a baby's health at birth, were 8 and 9 out of 10. Checks done of sixteen categories --- including various organs, neurological reflexes, and the baby's appearance -- were all "normal" after birth, the following day, and again at discharge. The records note that A.D. appeared jaundiced on September 12. He was discharged the same day, two days after birth.

The hospital records also include the results of various tests performed. A.D.'s urine toxicology screen was negative for all substances tested, including cocaine. A.D.'s stool toxicology tested positive for cocaine. That report states the following: "Confirmed POSITIVE by GC/MS for cocaine use by the presence of the following cocaine metabolite(s): Benzoylecgonine = 88 ng/g." A blood glucose record describes the patient as "jittery," but it is not clear whether the notation refers to A.L. or A.D. (The trial judge made no findings about the document and did not rely on it.)

On October 9, 2007, the Division filed a verified complaint for care and supervision of A.D. and T.L., pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. The trial court signed an order to show cause on October 15, 2007, which provided certain interim relief. It granted the Division care and supervision of the children, required that A.L. have supervised contact with them, and ordered A.L. to attend a drug and alcohol evaluation and cooperate with random urine screens. The order also required the baby's father, T.D., to provide random urine screens.

On the return date of the order to show cause, November 7, 2007, the trial court continued the interim relief. Legal custody of T.L., the older child, continued with his maternal grandparents. Legal custody of A.D. remained with A.L. and T.D., with A.L.'s visitation to be supervised by T.D. and the child's maternal grandparents. In an order filed on March 8, 2008, all restrictions on A.L.'s contact with her children were lifted.

Central to this appeal, the trial court held a fact-finding hearing on April 3, 2008. At the outset, T.D., the baby's father, stipulated that "he [was] a family in need of services," and the court entered an order to that effect, pursuant to N.J.S.A. 30:4C-12.

The Division moved for a finding of abuse or neglect against A.L. under N.J.S.A. 9:6-8.21. As discussed further below, the statute requires the Division to show that A.D.'s "physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of [A.L.'s] failure . . . to exercise a minimum degree of care . . . by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . ." N.J.S.A. 9:6-8.21(c)(4)(b).

The Division did not present any witnesses at the fact-finding hearing. Instead, the agency introduced seven documents. The first four are summarized above and consist of the following: (1) a Screening Summary, which summarized the hospital referral; (2) the Investigation Summary, which recounted the interviews described above; (3) the Safety Protection Plan; and (4) the hospital records.

The final three documents related to T.D., the newborn's father. They had no bearing on the trial court's findings about A.L. and are not relevant to this appeal.

Those seven documents comprise all of the evidence presented at the hearing. The Division made no allegations and presented no evidence against A.L. relating to her behavior during the nearly seven months since the child's birth. The hearing instead focused on A.L.'s prenatal drug use.

The Division conceded that this was not "a case where they could prove actual harm to the child, because of the documents." Rather, the agency asserted that there was a substantial risk of harm to A.D. "because of the positive screen by [A.L.], because of the positive screen on the child, and because of the environment [to which] the child would be going home."

A.L. argued that the Division had not met its burden of proof to show actual harm or risk of harm. She contended that Title 9 does not apply to a fetus and that evidence of prenatal drug use, without complications after birth, cannot support a finding of abuse or neglect.

The Law Guardian, appointed to represent the interests of T.L. and A.D., agreed that the Division had not presented sufficient evidence to show abuse or neglect. In the view of the Law Guardian, the proofs were "better suited" for relief under Title 30.

On April 23, 2008, the trial court issued its ruling. The judge found that DYFS had satisfied its burden under Title 9 by a preponderance of the evidence. The court noted that A.L. had "abused or neglected the child [] in that he was exposed to a substantial risk of harm by being born with cocaine in his system." The court therefore ...


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