New Jersey Division of Child Protection and Permanency v. Y.N. (072804)

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.)

New Jersey Division of Child Protection and Permanency v. Y.N. (A-24-13) (072804)

Argued September 9, 2014 -- Decided December 22, 2014

ALBIN, J., writing for a unanimous Court.

The primary issue in this case is whether, under N.J.S.A. 9:6-8.21(c)(4)(b), a finding of abuse or neglect
can be sustained against a woman who, while addicted to drugs, learns she is pregnant and enters a bona fide
methadone treatment program, and whose child suffers methadone withdrawal symptoms at birth.

In or about September 2010, after injuring her hand in a fall, Y.N. (Yvonne) 1 went to a hospital where she
learned for the first time that she was four months pregnant. Yvonne disclosed to hospital personnel that she had
been taking prescription Percocet for injuries caused by a car accident several months earlier. She was informed that
if she suddenly stopped taking the Percocet she might suffer withdrawal symptoms and lose her unborn baby.
Yvonne secured prenatal care at Morristown Memorial Hospital where she was told that she could only stop taking
Percocet through a methadone maintenance treatment program. On January 5, 2011, Yvonne enrolled in a
methadone maintenance program at American Habitare & Counseling, Inc. (Habitare). Yvonne had entered
detoxification programs in 2009 and 2010 for abusing prescription drugs and using cocaine and heroin.

From January 6 through March 15, 2011, Yvonne’s urine screens indicated no drugs in her system other
than methadone. On February 18, 2011, Yvonne gave birth to P.A.C. (Paul), who was diagnosed with neonatal
abstinence syndrome as a result of his withdrawal symptoms from methadone. He was admitted into the neonatal
intensive care unit where he received treatment, which included the administration of morphine, and was released to
Yvonne’s care on April 6, 2011.

In the morning of February 23, 2011, Paul’s father, P.C. (Phil) had a hostile encounter with Yvonne and
hospital personnel and threatened to take Paul from the hospital. Yvonne obtained a domestic violence temporary
restraining order based on the events at the hospital and on Yvonne’s allegations that Phil previously had thrown her
down a set of stairs and choked her. A week afterwards, at Yvonne’s request, the restraining order was dismissed.
Yvonne later confessed that she lied about prior bouts of domestic violence from fear of losing Paul. As a result of
the domestic violence episode in the hospital, the police referred the matter to the Division of Youth and Family
Services, since renamed the Division of Child Protection and Permanency. This was the beginning of the
Division’s involvement with Yvonne and Paul.

On March 15, 2011, Phil called the Division, claiming that he observed Yvonne high on drugs. On March
18, when she went to Habitare, Yvonne was told she would have to submit to a random drug test. According to
Yvonne, she waited fifteen minutes for the test but then had to leave because a cab whose fare she had pre-paid was
outside honking its horn. She testified that she returned the next day to Habitare but was told she already had been
marked down for a refusal. Habitare considered her failure to submit to the urine analysis the equivalent of a
positive test result.

On April 5, 2011, the Division filed a complaint seeking care, custody, and supervision of Paul. N.J.S.A.
30:4C-12. The complaint also alleged that Yvonne abused or neglected Paul based on Yvonne’s prior drug history,
her refusal to take the March 18 drug test, Paul’s methadone withdrawal, and the domestic violence involving
Yvonne and Phil. N.J.S.A. 9:6-8.21. At the conclusion of the abuse and neglect hearing on June 29, 2011, the
family court determined that the Division had proven abuse or neglect by a preponderance of the evidence.

In rendering its decision, the court made the following findings: (1) Yvonne had a long drug history dating

1
Pseudonyms are used for ease of reference.

1
back to 2005; (2) Yvonne became aware that she was pregnant but continued to “expose” her unborn child to drugs
for another four months before her entry into the Habitare program, one month before Paul’s birth; (3) Yvonne

refused to take a random drug test in March 2011 even though she was “reasonably compliant” with the program;
and (4) she has the potential to expose her child to domestic violence.

Yvonne appealed the court’s finding of abuse and neglect. The Appellate Division affirmed the family
court’s abuse and neglect finding solely on the basis that Yvonne caused her child to suffer withdrawal symptoms
from the methadone she took as part of a prescribed, bona fide medical treatment plan. N.J. Div. of Youth & Family
Servs. v. Y.N., 431 N.J. Super. 74, 82 (App. Div. 2013). The panel held Yvonne strictly liable for the harm suffered
by Paul and gave no consideration to whether Yvonne acted unreasonably or failed to provide a minimum level of
care for her newborn.

The Supreme Court granted Yvonne’s petition for certification. N.J. Dep’t of Children & Families v. Y.N.,
216 N.J. 13 (2013). The Court also granted the motions of four parties to participate as amici curiae.

HELD: Absent 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.

1. New Jersey’s child-welfare laws balance a parent’s right to raise a child against “the State’s parens patriae
responsibility to protect the welfare of children.” N.J. Dep’t. of Children and Families v. A.L., 213 N.J. 1, 17-18
(2013). One of Title Nine’s primary purposes is to protect children “who have had serious injury inflicted upon
them” and to safeguard them “from further injury and possible death.” N.J.S.A. 9:6-8.8(a). A finding of abuse or
neglect against a parent may result in significant and longstanding adverse consequences. Strict adherence to the
statutory standards of N.J.S.A. 9:6-8.21(c)(4) is important because the stakes are high for all parties concerned. (pp.
18-19)

2. The plain language of N.J.S.A. 9:6-8.21(c)(4)(b) requires proof that the child was impaired or in imminent
danger of becoming impaired because the parent (1) failed to exercise a minimum degree of care and (2)
unreasonably inflicted or allowed to be inflicted harm, or created a substantial risk of inflicting harm, on the child.
The statute makes clear that parental fault is an essential element for a finding of abuse or neglect. At the very least,
a minimum degree of care means that a parent’s conduct must be “grossly negligent or reckless.” N.J. Dep’t of
Children and Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 306 (2011). N.J.S.A. 9:6-8.21(c)(4)(b)
is not a strict liability statute. It does not suggest that a finding of abuse or neglect can be premised solely on a harm
caused to a child without consideration of the reasonableness of the parent’s conduct. Sometimes a parent may
cause injury to a child to protect that child from greater harm. Under those circumstances, the parent may be acting
reasonably. The Division must establish that, at a minimum, a parent acted with gross negligence or recklessness to
succeed in a prosecution under N.J.S.A. 9:6-8.21(c)(4)(b). (pp. 20-25)

3. The Court rejects the Appellate Division’s conclusion that “[w]here there is evidence of actual impairment, it is
immaterial whether the drugs taken were from a legal or illicit source.” Y.N., supra, 431 N.J. Super. at 82. The
Court cannot ignore the other statutory elements of N.J.S.A. 9:6-8.21(c)(4)(b) – whether Yvonne exercised a
“minimum degree of care” or “unreasonably” inflicted harm on her newborn. The reasoning of the Appellate
Division creates a perverse disincentive for a pregnant woman to seek medical help and enter a bona fide
detoxification treatment program that will address her and her baby’s health needs. Nothing in N.J.S.A. 9:6-
8.21(c)(4)(b) suggests that a woman is not exercising the minimum level of care by obtaining timely medical advice
and by timely entering a medically approved detoxification program that will improve the outcome for her newborn.
Absent 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. (pp. 25-30)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Appellate
Division for further consideration of whether there is any alternative basis on which to sustain the family court’s
finding of abuse or neglect.

2
 CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA and
SOLOMON join in JUSTICE ALBIN’s opinion; JUDGE CUFF (temporarily assigned) did not participate.

3
 SUPREME COURT OF NEW JERSEY
A-24 September Term 2013
072804

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY

Plaintiff-Respondent,

v.

Y.N.,

Defendant-Appellant,

and

P.C.,

Defendant.
____________________________
IN THE MATTER OF P.A.C., a
minor.

Argued September 9, 2014 – Decided December 22, 2014

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 431 N.J. Super. 74 (2013).

Clara S. Licata, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora,
Public Defender Parental Representation,
attorney; Ms. Licata and T. Gary Mitchell,
Deputy Public Defender, of counsel and on
the briefs).

Erin O’Leary, Deputy Attorney General,
argued the cause for respondent New Jersey
Division of Child Protection and Permanency
(John J. Hoffman, Acting Attorney General,
attorney; Andrea M. Silkowitz, Assistant
Attorney General; Ms. O’Leary and Lisa J.
Rusciano, on the briefs).

1
 James A. Louis, Deputy Public Defender,
argued the cause for respondent P.A.C.
(Joseph E. Krakora, Public Defender Law
Guardian, attorney; Mr. Louis, Olivia
Belfatto-Crisp, Assistant Deputy Public
Defender, and Lisa M. Black, Designated
Counsel, on the briefs).

Lawrence S. Lustberg argued the cause for
amici curiae Experts in Maternal and Fetal
Health, Public Health, and Drug Treatment
(Gibbons and National Advocates for Pregnant
Women, attorneys; Mr. Lustberg, Lynn M.
Paltrow, and Farah C. Diaz-Tello, members of
the New York bar, on the briefs).

Sean Marotta argued the cause for amicus
curiae Statewide Parent Advocacy Network,
Inc. (Hogan Lovells US, attorneys).

Ronald K. Chen argued the cause for amici
curiae American Civil Liberties Union of New
Jersey and American Civil Liberties Union
Foundation (Rutgers Constitutional
Litigation Clinic Center for Law & Justice,
Mr. Chen, Edward L. Barocas, Jeanne M.
LoCicero, Alexander R. Shalom, and Alexa
Kolbi-Molinas, a member of the New York bar,
on the brief).

Mary M. McManus-Smith, argued the cause for
amicus curiae Legal Services of New Jersey
(Melville D. Miller, Jr., President,
attorney; Ms. McManus-Smith, Mr. Miller, and
Jeyanthi C. Rajaraman, on the brief).

JUSTICE ALBIN delivered the opinion of the Court.

At a routine doctor’s appointment for a hand injury, Y.N.

(Yvonne)1 learned that she was four months pregnant. During that

1 Pseudonyms are used for ease of reference.
2
four-month period, Yvonne had been taking Percocet for injuries

caused in a car accident and became dependent on that

medication. Hospital personnel advised her that she could not

stop taking Percocet abruptly without endangering her pregnancy

and recommended that she enter a methadone maintenance treatment

program. Yvonne entered such a program four months later, a

month before she gave birth. Her baby, P.A.C. (Paul), suffered

methadone withdrawal symptoms at birth and remained hospitalized

for about seven weeks.

The Division of Youth and Family Services (Division)2 filed

an abuse and neglect complaint against Yvonne based on her long-

term drug use before and during her pregnancy, the harm caused

to Paul from methadone withdrawal, and her failure to address

acts of domestic violence committed against her. After a

hearing, the family court entered a finding of abuse and

neglect.

The Appellate Division affirmed solely on the basis that

Yvonne caused her child to suffer withdrawal symptoms from the

methadone she took as part of a prescribed, bona fide medical

treatment plan. N.J. Div. of Youth & Family Servs. v. Y.N., 431

N.J. Super. 74, 82 (App. Div. 2013). The panel held her

2 Effective June 29, 2012, the New Jersey Division of Youth and
Family Services was renamed the Division of Child Protection and
Permanency. L. 2012, c. 16, § 20.
3
strictly liable for the harm suffered by Paul and gave no

consideration to whether Yvonne acted unreasonably or failed to

provide a minimum level of care for her newborn.

We disagree with the Appellate Division’s reasoning and now

reverse. We hold that, absent 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 Yvonne

unreasonably inflicted harm on her newborn and did so, at least,

by acting with gross negligence or recklessness. The Appellate

Division looked only to the child’s withdrawal symptoms at the

time of his birth and not to whether his mother took reasonable

steps to minimize the harm to her child by securing treatment

for her addiction. In short, the Appellate Division did not

consider all of the requisite statutory elements in its

analysis.

We remand to the Appellate Division to determine whether

the finding of abuse or neglect can be sustained on any other

ground articulated by the family court.

4
 I.

A.

The issue in this appeal arises from a June 2011 hearing

before the family court at which the Division charged Yvonne

with the abuse or neglect of her newborn child, Paul. At the

hearing, the Division presented two witnesses -- a Division

supervisor and a Division caseworker. The Division also

introduced into evidence various medical, psychological, and

investigative reports. Yvonne testified as well. The following

three paragraphs are based on Yvonne’s testimony.

In or about September 2010, after injuring her hand in a

fall, she went to a hospital where she learned for the first

time that she was four months pregnant. Yvonne disclosed to

hospital personnel that she had been taking prescription

Percocet for injuries caused by a car accident several months

earlier. She was informed that if she suddenly stopped taking

the Percocet she might suffer withdrawal symptoms and lose her

unborn baby. She was told to secure prenatal care immediately.

She received prenatal care at Morristown Memorial Hospital

where she was told that she could only stop taking Percocet

through a methadone maintenance treatment program. For the next

four months, Yvonne had appointments with “regular doctors and

high risk doctors,” received prenatal care, and searched for a

detoxification clinic. On January 5, 2011, Yvonne enrolled in a

5
methadone maintenance program at American Habitare & Counseling,

Inc. (Habitare).

This was not her first experience in a detoxification

program. In 2005, Yvonne struggled with depression after the

loss of her young daughter due to illness. In the aftermath,

she began abusing prescription pills and then turned to cocaine

and heroin. To address her drug abuse, she entered

detoxification programs in 2009 and 2010. The last time she

used cocaine and heroin was about eight months before

discovering she was pregnant.3

Yvonne’s initial drug test at Habitare revealed the

presence of opiates in her system. The test was consistent with

her account of taking Percocet, which is an opioid drug.4

Physicians’ Desk Reference 1096-97 (65th ed. 2011). In

accordance with Habitare’s protocols, Yvonne began taking a

daily dosage of methadone and followed her treatment plan.

From January 6, 2011, through March 15, 2011, Yvonne’s

urine screens indicated no drugs in her system other than

methadone. On February 18, 2011, Yvonne gave birth to Paul at

Morristown Memorial Hospital. Paul was diagnosed with neonatal

3In contrast, at Habitare, Yvonne disclosed that she had
continued to use cocaine and heroin until about the time of
Paul’s conception.

4 Other opioids are morphine and heroin. Taber’s Cyclopedic Med.
Dictionary 1124 (Donald Venes et al. eds., 22d ed. 2013).
6
abstinence syndrome as a result of his withdrawal symptoms from

methadone.5 Those symptoms included tremors, fever, and trouble

sleeping. Paul was admitted into the neonatal intensive care

unit where he received treatment, which included the

administration of morphine. Paul was released to Yvonne’s care

on April 6, 2011.

In the early morning of February 23, 2011, Paul’s father,

P.C. (Phil) had a hostile encounter with Yvonne and hospital

personnel. Yvonne complained to Phil that he was not supporting

the baby’s head properly while holding him. Phil became

confrontational and threatened to take the child from the

hospital. The hospital’s staff asked Phil to leave and, when he

refused, he was removed by the police and hospital security.

Later that same day, Yvonne obtained a domestic violence

temporary restraining order. The order was based not only on

the events at the hospital, but also on Yvonne’s allegations

that Phil previously had thrown her down a set of stairs and

choked her.

A week afterwards, at Yvonne’s request, the restraining

order was dismissed. At the abuse and neglect hearing, Yvonne

5Neonatal abstinence syndrome is defined as “[a]ny of the
adverse consequences in the newborn of exposure to addictive or
dangerous intoxicants during fetal development.” Taber’s
Cyclopedic Med. Dictionary, supra, at 1158.
7
stated that, although she and Phil had their “share of fights,”

she felt pressured to seek a restraining order and lied about

the prior bouts of domestic violence from fear of losing Paul.

As a result of the domestic violence episode in the

hospital, the police referred the matter to the Division of

Youth and Family Services. This was the beginning of the

Division’s involvement with Yvonne and Paul.

On March 15, 2011, Phil called the Division, claiming that

he observed Yvonne high on drugs. Three days later when Yvonne

went to Habitare for her methadone treatment, she was told she

would have to submit to a random drug test. According to

Yvonne, she waited fifteen minutes to give a urine sample, but

then had to leave because a cab whose fare she had pre-paid was

outside honking its horn. She testified that she returned the

next day to Habitare but was told she already had been marked

down for a refusal. Habitare considered her failure to submit

to the urine analysis the equivalent of a positive test result.

On April 5, 2011, the Division filed a complaint, seeking

care, custody, and supervision of Paul. N.J.S.A. 30:4C-12. The

complaint also alleged that Yvonne abused or neglected Paul

based on Yvonne’s prior drug history, her refusal to take the

March 18 drug test, Paul’s methadone withdrawal, and the

domestic violence involving Yvonne and Phil. N.J.S.A. 9:6-8.21.

The day after the filing of the complaint, Yvonne passed a drug

8
test, and the family court released Paul to her custody.6

B.

At the conclusion of the abuse and neglect hearing on June

29, 2011, the family court determined that the Division had

proven abuse or neglect by a preponderance of the evidence. The

court conceded that the Division had not presented “overwhelming

testimony” or “the strongest case in the world.” The court also

commended Yvonne for entering a recognized detoxification

program and acknowledged that she had “made strides.”

Nevertheless, the court maintained that the evidence presented

by the Division was sufficient to prove abuse or neglect. The

court found Yvonne’s “credibility very questionable,”

particularly given her recantation of her domestic violence

claims.

In rendering its decision, the court made the following

findings: (1) Yvonne had a long drug history dating back to

2005; (2) Yvonne became aware that she was pregnant but

continued to “expose” her unborn child to drugs for another four

months before her entry into the Habitare program, one month

before Paul’s birth; (3) Yvonne refused to take a random drug

test in March 2011 even though she was “reasonably compliant”

6 Yvonne tested positive for cocaine on April 18, 2011, but that
test post-dated the complaint and was not part of the Division’s
proofs at the abuse and neglect hearing.
9
with the program; and (4) she has the potential to expose her

child to domestic violence. Last, the court expressed that

“[w]hen a child is born drug exposed to illicit drugs, we

routinely say that’s abuse and neglect.” The court permitted

Yvonne to retain physical custody of Paul, but under the care

and supervision of the Division.

Yvonne appealed the court’s finding of abuse or neglect.

II.

A.

In affirming the family court’s abuse or neglect finding,

the Appellate Division focused solely on the harm suffered by

Paul due to his methadone withdrawal. Y.N., supra, 431 N.J.

Super. at 80-84. The panel rejected Yvonne’s contention that a

“finding of abuse or neglect cannot be based upon her ingestion

of methadone from ‘a legitimate program providing assistance

from withdrawal.’” Id. at 81. The panel noted that “Paul’s

severe withdrawal, which required treatment in the [neonatal

intensive care unit] and numerous doses of morphine over an

extended period of time, is compelling evidence of actual

impairment.” Id. at 82. The panel then determined that

“[w]here there is evidence of actual impairment, it is

immaterial whether the drugs taken were from a legal or illicit

source.” Ibid. In the panel’s view, “[t]he fact that defendant

obtained the methadone from a legal source does not preclude our

10
consideration of the harm it caused to the newborn.” Id. at 81.

The panel maintained that “[a]n inquiry under N.J.S.A. 9:6-8.21

[the abuse and neglect statute] must focus on the harm to the

child, rather than on the intent of the caregiver.” Ibid.

In a footnote, the panel observed that it did “not appear

that anyone from [the hospital] notified the Division that

Yvonne gave birth to a child suffering withdrawal symptoms.”

Id. at 78 n.3. The panel then added: “We take this opportunity

to note that N.J.S.A. 9:6-8.10 requires ‘any person having

reasonable cause to believe that a child has been subjected to

child abuse or acts of child abuse shall report the same

immediately to the Division of Child Protection and Permanency

by telephone or otherwise.’” Ibid.

Last, because “defendant admit[ted] that her use of

methadone caused Paul’s withdrawal symptoms,” the panel found it

unnecessary to “consider her claim that the Division failed to

prove that her prenatal use of Percocet and OxyContin caused

harm to Paul or exposed him to a risk of harm.” Id. at 84.

B.

We granted Yvonne’s petition for certification, N.J. Dep’t

of Children & Families v. Y.N., 216 N.J. 13 (2013), which

presented two questions: (1) whether, under N.J.S.A. 9:6-

8.21(c)(4)(b), a finding of abuse or neglect can be sustained

against a woman who, while addicted to drugs, learns she is

11
pregnant and enters a bona fide methadone treatment program, and

whose child suffers methadone withdrawal symptoms at birth; and

(2) whether a physician is required to make an abuse or neglect

report to the Division pursuant to N.J.S.A. 9:6-8.10, whenever a

child is born with neonatal abstinence syndrome resulting from a

mother’s prenatal medical treatment.

We also granted the motions of four parties to participate

as amici curiae: Legal Services of New Jersey (Legal Services);

Statewide Parent Advocacy Network, Inc.; Experts in Maternal and

Fetal Health, Public Health, and Drug Treatment; and the

American Civil Liberties Union of New Jersey and the American

Civil Liberties Union Foundation (ACLU).

III.

A.

Yvonne argues that the Appellate Division erred in holding

that abuse or neglect can be found under N.J.S.A. 9:6-

8.21(c)(4)(b) based merely on a harm caused to a child without

proof that the parent unreasonably inflicted the harm by

departing from the necessary minimum degree of care. Yvonne

contends that she followed medical advice not to abruptly stop

taking Percocet to avoid a potential miscarriage or harm to her

fetus. She also points out that the Division did not present

any evidence that Paul’s neonatal abstinence syndrome symptoms

“would have been milder, of shorter duration, or avoided

12
entirely if she entered treatment earlier.” She submits that

she did not unreasonably inflict harm on her newborn by securing

methadone treatment for her preexisting Percocet addiction. She

claims that she made an informed medical decision -- entitled to

constitutional protection -- to enter a detoxification program

to minimize the more serious side effects to her unborn child

rather than continue to use Percocet or suddenly terminate its

use.

In response to the Appellate Division’s footnote on

reporting child abuse, Yvonne maintains that healthcare

officials have no mandatory requirement under N.J.S.A. 9:6-8.10

to report the “treatable side effects of [neonatal abstinence

syndrome]” caused by a mother’s participation in a medically

approved methadone program.

B.

Amici, Legal Services; Statewide Parent Advocacy Network;

Experts in Maternal and Fetal Health, Public Health, and Drug

Treatment; and ACLU, all submit that the Appellate Division

erred in finding that a newborn child who experiences neonatal

abstinence syndrome as the result of a mother’s participation in

a medically prescribed methadone treatment program is an abused

or neglected child under N.J.S.A. 9:6-8.21(c)(4)(b). Among the

arguments offered by amici are these: (1) “a parent’s adherence

to a bona fide treatment plan prescribed by a licensed health

13
professional cannot rise to the level” of gross negligence,

recklessness, or willful or wanton conduct, a necessary

predicate for a finding of abuse or neglect under N.J.S.A. 9:6-

8.21(c)(4)(b); (2) Yvonne should not be punished for entering a

methadone treatment program for an addiction that preexisted her

pregnancy when treatment will mitigate the risks to her child;

(3) pregnant women suffering drug addiction should not be

discouraged from entering a methadone maintenance program, which

is the most effective treatment for opioid dependence and which

has treatable effects on a newborn; and (4) a woman has a

constitutional right to self-autonomy in making medically

approved decisions for her health and her child’s health. In

short, amici contend that a woman addicted to drugs who becomes

pregnant and secures medical advice, who discloses all relevant

information to a medical professional, and who complies with a

prescribed detoxification treatment plan has not abused or

neglected her newborn, even if the child suffers methadone

withdrawal symptoms.

C.

The Division urges this Court to affirm the appellate

panel. The Division contends that it is unnecessary to decide

whether Yvonne “failed to exercise a minimum degree of care”

because Paul “suffered actual harm, and that harm was severe

enough to meet the statutory requirements of N.J.S.A. 9:6-

14
8.21(c)(4)(b).” According to the Division, Yvonne’s intentions

are irrelevant and all that matters is whether her conduct

caused harm to her child. The Division maintains that Paul’s

neonatal abstinence syndrome was evidence of harm sufficient for

an abuse or neglect finding, even if Yvonne’s use of methadone

was directed by healthcare professionals. Additionally, the

Division asks this Court to affirm the Appellate Division’s

judgment because the evidence in the record is ample to support

the trial court’s finding of abuse or neglect. The Division

points “to multiple factors that placed [Paul] at substantial

risk of harm,” such as “[Yvonne’s] illegal drug use during

pregnancy,” her four-month delay in securing addiction treatment

after learning of her pregnancy, her “continued substance abuse

after Paul’s birth,” and her lack of honesty in recounting the

domestic violence involving Phil.

The Division submits that the Appellate Division’s footnote

was a necessary reminder to hospital personnel of their

reporting obligation pursuant to N.J.S.A. 9:6-8.10. It insists

that a physician should contact the Division whenever a child is

suffering from “significant” drug withdrawal symptoms. The

Division states that an investigation is the best vehicle for

“determining whether a child requires and deserves the

protections afforded by Title [Nine].”

15
 D.

Paul’s Law Guardian urges the Court to uphold the family

court’s determination that Yvonne abused or neglected Paul.

Although the Law Guardian argues that the actual harm suffered

by Paul was sufficient for a finding of abuse or neglect, he

asks that we look to the entirety of the family court’s factual

findings. In particular, the Law Guardian points to the court’s

findings on Yvonne’s prior drug use, her involvement in domestic

violence, and her four-month delay in entering a detoxification

program. He claims that this delay in getting treatment

increased the risk of harm to Paul.

Last, the Law Guardian comments that the Appellate

Division’s footnote on a hospital’s obligation to report child

abuse is “dicta” and irrelevant to the issues in this case, and

therefore should not be reviewed in this appeal.

IV.

A.

The primary issue in this case involves statutory

interpretation: whether a finding of abuse or neglect under

N.J.S.A. 9:6-8.21(c)(4)(b) can be based solely on the harm

caused to Paul by methadone withdrawal -- without regard to

whether Yvonne acted unreasonably or with a minimum degree of

care. In addressing that issue, we must identify the statutory

elements necessary to prove abuse or neglect under N.J.S.A. 9:6-

16
8.21(c)(4)(b).

“In construing the meaning of a statute, our review is de

novo,” and therefore we need not defer to the Appellate

Division’s or trial court’s interpretive conclusions. Murray v.

Plainfield Rescue Squad, 210 N.J. 581, 584 (2012); see also

Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995)

(“A trial court’s interpretation of the law and the legal

consequences that flow from established facts are not entitled

to any special deference.”).

“Our paramount goal in interpreting a statute is to give

effect to the Legislature’s intent.” Wilson ex rel. Manzano v.

City of Jersey City, 209 N.J. 558, 572 (2012). The starting

point of all statutory interpretation must be the language used

in the enactment. Farmers Mut. Fire Ins. Co. of Salem v. N.J.

Prop.-Liab. Ins. Guar. Ass’n, 215 N.J. 522, 536 (2013); see also

N.J.S.A. 1:1-1 (stating that words of statute are customarily

construed according to their “generally accepted meaning”). “If

the statutory language is clear and unambiguous, and reveals the

Legislature’s intent, we need look no further.” Farmers Mut.,

supra, 215 N.J. at 536. Only when faithful adherence to the

words of the statute leads to more than one plausible

interpretation or to an absurd result or to a result at odds

with the objective of the overall legislative scheme do we look

to extrinsic sources, such as legislative history. Ibid.;

17
DiProspero v. Penn, 183 N.J. 477, 492-93 (2005).

With those principles in mind, we turn first to the

purpose, nature, and consequences of abuse and neglect

proceedings and then to the contents of the statute in question.

B.

New Jersey’s child-welfare laws balance a parent’s right to

raise a child against “the State’s parens patriae responsibility

to protect the welfare of children.” N.J. Dep’t. of Children

and Families v. A.L., 213 N.J. 1, 17-18 (2013) (internal

quotation marks omitted). One of Title Nine’s primary purposes

is to protect children “who have had serious injury inflicted

upon them” and to safeguard them “from further injury and

possible death.” N.J.S.A. 9:6-8.8(a). To that end, Title Nine

provides for the civil prosecution of a parent or guardian who

abuses or neglects a child. N.J.S.A. 9:6-8.33.

In this case, the Title Nine proceedings began when the

Division filed a complaint alleging that Yvonne had abused or

neglected her newborn, Paul. See ibid. At the fact-finding

hearing, the Division bore the burden of proving abuse or

neglect by a preponderance of the evidence based on “competent,

material and relevant evidence.” N.J.S.A. 9:6-8.46(b).

A finding of abuse or neglect against a parent may result

in significant and longstanding adverse consequences. A.L.,

supra, 213 N.J. at 25. The parent’s name and information

18
concerning the case are forwarded to a Central Registry and kept

on file by the Department of Children and Families. See

N.J.S.A. 9:6-8.11. That information may be released to certain

entities responsible for “employment-related screening of an

individual . . . seeking employment with an agency or

organization providing services to children,” N.J.S.A. 9:-

8.10a(b)(13), as well as to doctors, courts, and child welfare

agencies. N.J.S.A. 9:6-8.10a(b)(1),(3),(4),(5),(6),(13); see

also N.J.S.A. 9:6-8.10e (mandating that Division conduct check

of child abuse registry for each person seeking registration as

professional guardian); N.J.S.A. 30:5B-25.3 (mandating child

abuse registry check for applicant seeking daycare facility

licensure). A court, moreover, “can enter a dispositional order

that places the child in the custody of a relative or another

suitable person for a substantial period of time.” A.L., supra,

213 N.J. at 25-26 (citing N.J.S.A. 9:6-8.50(d), -8.51(a), -

8.54(a)). Finally, and perhaps most significantly, an abuse or

neglect finding may provide a basis for an action to terminate a

parent’s custodial rights to a child. N.J.S.A. 30:4C-15(a)

(allowing petition to terminate parental rights based on

adjudication of abuse or neglect).

Strict adherence to the statutory standards of N.J.S.A.

9:6-8.21(c)(4) is important because the stakes are high for all

parties concerned.

19
 C.

A child may be abused or neglected in different ways in

violation of Title Nine. N.J.S.A. 9:6-8.21(c). Here, the

Division proceeded on a theory that Yvonne abused or neglected

her child by violating a subpart of N.J.S.A. 9:6-8.21(c).

N.J.S.A. 9:6-8.21(c)(4)(b) defines an abused or neglected child

as 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, as herein defined,
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, . . . or by any other acts of a
similarly serious nature requiring the aid of
the court.

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

The plain language of N.J.S.A. 9:6-8.21(c)(4)(b) requires

proof that the child was impaired or in imminent danger of

becoming impaired because the parent (1) failed to exercise a

minimum degree of care and (2) unreasonably inflicted or allowed

to be inflicted harm, or created a substantial risk of

inflicting harm, on the child. The statute makes clear that

parental fault is an essential element for a finding of abuse or

neglect under N.J.S.A. 9:6-8.21(c)(4)(b). The Division must

establish that a parent failed “to exercise a minimum degree of

20
care” in a prosecution under N.J.S.A. 9:6-8.21(c)(4)(b). N.J.

Dep’t of Children & Families, Div. of Youth & Family Servs. v.

T.B., 207 N.J. 294, 309-10 (2011) (concluding that Division

failed to prove abuse or neglect because parent’s conduct did

not constitute failure to exercise minimum degree of care); N.J.

Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 247,

249 (App. Div. 2012) (reversing adjudication of abuse or neglect

because trial court did not make finding that “defendant failed

to provide a minimum degree of care”).

At the very least, a minimum degree of care means that a

parent’s conduct must be “grossly negligent or reckless.” T.B.,

supra, 207 N.J. at 306. In contrast, a parent’s negligent

conduct is not sufficient to justify a finding of abuse or

neglect under N.J.S.A. 9:6-8.21(c)(4)(b). Id. at 306-07; see

also N.J. Dep’t of Youth & Family Servs. v. J.L., 410 N.J.

Super. 159, 168-69 (App. Div. 2009) (reversing abuse or neglect

finding because mother’s conduct, although “arguably inattentive

or even negligent,” was not grossly negligent or reckless). A

civil prosecution under N.J.S.A. 9:6-8.21(c)(4)(b) also requires

proof that a parent “unreasonably” inflicted harm. However, it

follows that a parent who causes harm to a child by grossly

negligent or reckless conduct has acted unreasonably.

We need not look beyond the words of N.J.S.A. 9:6-

8.21(c)(4)(b). We will not read out of the statute the

21
standard-of-care language that the Legislature pointedly

included as a prerequisite to a finding of abuse or neglect.

See DiProspero, supra, 183 N.J. at 492 (noting that court

“cannot write in an additional qualification which the

Legislature pointedly omitted in drafting its own enactment”

(internal quotation marks omitted)). N.J.S.A. 9:6-8.21(c)(4)(b)

is not a strict liability statute. It does not suggest that a

finding of abuse or neglect can be premised solely on a harm

caused to a child without consideration of the reasonableness of

the parent’s conduct.

Sometimes a parent may cause injury to a child to protect

that child from a greater harm. Under those circumstances, the

parent may be acting reasonably. Simply stated, the statute

requires more than a mere showing of harm to a child. The

Division must establish that, at a minimum, a parent acted with

gross negligence or recklessness to succeed in a prosecution

under N.J.S.A. 9:6-8.21(c)(4)(b).

The Appellate Division relied on In re Guardianship of

K.H.O., 161 N.J. 337 (1999), State v. Tamburro, 68 N.J. 414

(1975), and A.L., supra, 213 N.J. 1, in support of its position

that harm alone is sufficient for an adjudication of abuse or

neglect under N.J.S.A. 9:6-8.21(c)(4)(b). Those cases do not

support the conclusion reached by the Appellate Division.

K.H.O., supra, was a parental-termination case arising

22
under N.J.S.A. 30:4C-15.1(a). 161 N.J. at 345. In that case,

the mother abused heroin during her pregnancy and did not seek

drug treatment until after her child’s birth. Id. at 344. Her

child was born “suffering from heroin withdrawal, cleft palate

syndrome, and respiratory difficulties.” Ibid. We noted that

generally “[d]rug use during pregnancy, in and of itself, does

not constitute a harm to the child.” Id. at 349. We held,

however, that because the baby was born suffering withdrawal

symptoms from heroin addiction, the State met prong one of the

four-part, parental-termination test: “[t]he child’s safety,

health or development has or will continue to be endangered by

the parental relationship,” N.J.S.A. 30:4C-15.1(a). Id. at 349-

50.

K.H.O. is not comparable to the present case. K.H.O. did

not involve Title Nine or an interpretation of similar statutory

language relating to the minimum level of care owed to a child.

It did not involve a mother who sought and entered a drug

treatment program prescribed by medical professionals for her

and her newborn’s care. Significantly, here, at the time of

Paul’s birth, Yvonne was taking methadone -- a prescribed

medication administered pursuant to a bona fide program to treat

her addiction. Unlike the child in K.H.O., Paul was born

suffering withdrawal symptoms from medication lawfully taken by

his mother, as recommended by her doctor.

23
 Tamburro, supra, is also inapposite because, there, we

construed N.J.S.A. 39:4-50, the driving under the influence

statute. 68 N.J. at 420-21. In that case, we simply determined

that, based on its language, N.J.S.A. 39:4-50 is a strict

liability statute. Id. at 421. We came to the unremarkable

conclusion that a person is no less guilty of driving under the

influence of methadone than of driving under the influence of

alcohol or any other drug. Ibid. One can lawfully take

methadone or imbibe alcohol. Ibid. However, driving under the

influence of either drugs or alcohol is a violation of N.J.S.A.

39:4-50. Ibid.

Last, the Appellate Division’s reliance on A.L. is

misplaced. In that case, a mother ingested cocaine during the

course of her pregnancy, and her newborn’s first stool tested

positive for “cocaine metabolites.” A.L., supra, 213 N.J. at 9.

The child, however, did not suffer any withdrawal symptoms or

any other identifiable harm. Id. at 11. Nevertheless, the

Division of Youth and Family Services contended that the

presence of cocaine in the child’s system established that the

mother posed a substantial risk of harm to the child and

therefore the child was abused or neglected under N.J.S.A. 9:6-

8.21(c)(4)(b). Id. at 13.

On appeal, the mother in A.L. did not argue that taking

cocaine during pregnancy might not breach the minimum level of

24
care mandated by the statute. Id. at 15-16. Rather, we

addressed the mother’s argument that “N.J.S.A. 9:6-8.21(c)(4)

does not apply to a fetus or a pregnant woman absent harm or

imminent risk of harm to a child after birth.” Id. at 15. We

stated in A.L. that, absent evidence of actual impairment to the

child, “the critical focus is on evidence of imminent danger or

substantial risk of harm.” Id. at 22. We noted that “[p]roof

that a child’s mother frequently used cocaine or other dangerous

substances during pregnancy would be relevant to that issue,”

but added 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.” Id. at 23. In A.L., we found that the presence of

cocaine metabolites in the newborn’s stool, without anything

more, including expert testimony to explain its meaning and

significance, was insufficient to sustain an abuse or neglect

determination. Id. at 29-30.

Importantly, A.L. did not address the scenario of a child

experiencing withdrawal symptoms from medication lawfully

prescribed by a physician to the child’s mother to treat her

addiction.

In short, none of those three cases resolves the issue

before us.

25
 V.

The issue here is whether the Appellate Division erred in

determining that Yvonne violated the abuse and neglect statute

solely because her newborn suffered neonatal abstinence syndrome

as a result of her participation in a medically prescribed

methadone maintenance treatment program. In our view, the

Appellate Division went astray by concentrating on harm without

regard to parental fault. We reject the Appellate Division’s

conclusion that “[w]here there is evidence of actual impairment,

it is immaterial whether the drugs taken were from a legal or

illicit source.” Y.N., supra, 431 N.J. Super. at 82. We cannot

ignore the other statutory elements of N.J.S.A. 9:6-

8.21(c)(4)(b) -- whether Yvonne exercised a “minimum degree of

care” or “unreasonably” inflicted harm on her newborn.

Whether a parent exercised a minimum degree of care must

“be analyzed in light of the dangers and risks associated with

the situation.” G.S. v. Dep’t of Human Servs., 157 N.J. 161,

181-82 (1999). A woman who becomes addicted to lawfully

prescribed medication and then learns she is pregnant is

confronted with a choice -- either to seek treatment that will

improve the outcome for her newborn or to continue on the path

of her addiction. The reasoning of the Appellate Division

creates a perverse disincentive for a pregnant woman to seek

medical help and enter a bona fide detoxification treatment

26
program that will address her and her baby’s health needs. In

weighing the relative harms facing the child, the greater

potential harm is if the mother does not secure proper prenatal

care, including treatment for her drug dependency. Nothing in

N.J.S.A. 9:6-8.21(c)(4)(b) suggests that a woman is not

exercising the minimum level of care by obtaining timely medical

advice and by timely entering a medically approved

detoxification program that will improve the outcome for her

newborn.

According to the record in this case, before she knew she

was pregnant, Yvonne was addicted to a prescribed opioid,

Percocet, which she had been taking to deal with a physical

injury. Yvonne followed the advice of a medical professional

and later entered into a methadone maintenance program.

According to the Centers for Disease Control and Prevention,

methadone maintenance treatment is “the most effective treatment

for opiate addiction” and leads to “improved pregnancy

outcomes.” Ctrs. for Disease Control & Prevention, Methadone

Maintenance Treatment, 1 (2002),

http://www.cdc.gov/idu/facts/methadonefin.pdf. The United

States Department of Health and Human Services has reported that

methadone maintenance treatment can save the life of a baby born

to an addicted mother and that a newborn experiencing methadone

withdrawal is far better off than a newborn addicted to heroin.

27
Substance Abuse and Mental Health Servs. Admin., U.S. Dept. of

Health and Human Servs., Methadone Treatment for Pregnant Women

(2014), available at,

http://store.samhsa.gov/shin/content//SMA14-4124/SMA14-4124.pdf.

Commentators warn that finding a mother liable of abuse or

neglect for her newborn’s neonatal abstinence syndrome after the

mother has made an informed medical decision to undergo

methadone maintenance treatment will discourage women from

entering detoxification programs that will likely improve their

children’s health prospects. Martha A. Jessup, et al.,

Extrinsic Barriers to Substance Abuse Treatment Among Pregnant

Drug Dependent Women, 33 J. Drug Issues 285, 291 (2003) (noting

that pregnant woman’s fear of seeking appropriate medical help

for addiction will have adverse consequences on newborn’s

health); see also U.S. Gen. Accounting Office, GAO/HRD-90-138,

Report to the Chairman, Comm. on Finance, U.S. Senate, Drug-

Exposed Infants: A Generation at Risk 9 (1990) (“[T]he

increasing fear of incarceration and losing children to foster

care is discouraging pregnant [addicts] from seeking care.”);

Marilyn L. Poland, et al., Punishing Pregnant Drug Users:

Enhancing the Flight from Care, 31 Drug and Alcohol Dependence

199, 202 (1993) (noting “that substance using pregnant women

[will] ‘go underground’” if they fear incarceration and loss of

children following treatment for their addiction).

28
 N.J.S.A. 9:6-8.21(c)(4)(b) does not require a finding of

abuse or neglect when an addicted woman, who learns that she is

pregnant, seeks timely professional treatment for her addiction

that will improve the outcome for her unborn child. We hold

that, absent 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.

We therefore reverse the Appellate Division’s determination

that the withdrawal symptoms experienced by Paul resulting from

Yvonne’s participation in a bona fide methadone maintenance

program was, standing alone, a sufficient basis for a finding of

abuse or neglect.

We have resolved only the issue before us. We do not pass

on whether there is sufficient credible evidence to support an

abuse or neglect finding on some other basis referenced by the

family court, such as the timeliness of Yvonne’s seeking drug

treatment -- that is, whether an unjustified delay might have

adversely affected her newborn’s later withdrawal symptoms. We

also do not address whether Yvonne violated the abuse and

neglect statute because of the manner in which she responded to

the domestic violence allegedly committed against her. We

therefore remand to the Appellate Division to decide whether

29
there is sufficient credible evidence in the record to support

the finding of abuse or neglect on an alternate theory

articulated by the family court.

VI.

Last, the Appellate Division’s footnote on the child abuse

reporting requirement under N.J.S.A. 9:6-8.10 does not resolve

whether a hospital has a legal duty to report when a newborn is

afflicted with neonatal abstinence syndrome resulting from a

mother’s participation in a medically approved methadone

maintenance program.7 That issue was not properly joined in this

case. It was not raised, argued, or briefed in the family court

or Appellate Division. The hospital and its professional

personnel -- whose interests were directly implicated by the

footnote -- were not parties to the abuse and neglect litigation

and therefore had no opportunity to address the scope of their

reporting requirement. No party in this case had a similar

adversity of interest to that of the hospital and its

professional staff. This case does not present an appropriate

vehicle -- either for the Appellate Division or this Court -- to

discuss a hospital’s reporting requirement under N.J.S.A. 9:6-

7 As noted earlier, N.J.S.A. 9:6-8.10 states that “[a]ny person
having reasonable cause to believe that a child has been
subjected to child abuse or acts of child abuse shall report the
same immediately to the Division of Child Protection and
Permanency by telephone or otherwise.”
30
8.10, and therefore the footnote has no effect.

VII.

For the reasons given, we reverse the judgment of the

Appellate Division. We remand to the Appellate Division for

further consideration of whether there is any alternative basis

on which to sustain the family court’s finding of abuse or

neglect. We express no opinion on that subject.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, and SOLOMON join in JUSTICE ALBIN’s opinion.
JUDGE CUFF (temporarily assigned) did not participate.

31
 SUPREME COURT OF NEW JERSEY

NO. A-24 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

Y.N.,

Defendant-Appellant,

and

P.C.,

Defendant.
__________________________________
IN THE MATTER OF P.A.C., a minor.

DECIDED December 22, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) ----------------------- --------------------
TOTALS 6

1