RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3662-13T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY, APPROVED FOR PUBLICATION
February 25, 2016
Plaintiff-Respondent,
APPELLATE DIVISION
v.
K.M.,
Defendant-Appellant.
______________________________
IN THE MATTER OF G.G.,
a minor.
______________________________
Argued November 12, 2015 - Decided February 25, 2016
Before Judges Fuentes, Koblitz and Gilson.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket No. FN-12-65-14.
Clara S. Licata, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Ms. Licata, on
the brief).
James F. LaFargue, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General, attorney;
Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Mr. LaFargue, on the
brief).
Danielle Ruiz, Designated Counsel, argued
the cause for minor G.G. (Joseph E. Krakora,
Public Defender, Law Guardian, attorney; Ms.
Ruiz, on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Defendant K.M.1 is the biological mother of G.G., a boy born
in April 2013. She appeals from the order entered by the Family
Part finding she abused or neglected G.G. within the meaning of
N.J.S.A. 9:6-8.21(c)(4)(a), after the child was born manifesting
signs of physical distress caused by withdrawal from opioid
addiction. We affirm.
G.G. was born at St. Peter's University Hospital in New
Brunswick weighing 9 pounds and 3.6 ounces, and showing no
apparent signs of distress or abnormalities. However, during
the first three days after his birth, the medical staff noted
the infant was exhibiting symptoms consistent with opioid
withdrawal. G.G. was thereafter admitted to the neonatal
intensive care unit (NICU) for respiratory distress. The
hospital staff contacted the Division of Child Protection and
Permanency (Division), which dispatched a caseworker to meet and
discuss the situation with defendant.
1
We use initials and fictitious names to protect the
confidentiality of the participants in these proceedings
pursuant to Rule 1:38-3(d).
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Upon arriving at the hospital, the Division caseworker saw
G.G. at the NICU before meeting with defendant. The caseworker
noted G.G. was "jerking his arm up above his head." By this
time, the nursing staff was actively monitoring the infant for
withdrawal symptoms. Defendant admitted to the caseworker she
was addicted to oxycodone, sold as Roxicodone or "Roxis," prior
to her pregnancy.2 Defendant also admitted to illicitly
acquiring Suboxone,3 an opioid analog prescribed by physicians to
treat the physical symptoms of opioid withdrawal. She told the
caseworker she ingested Suboxone two to three times per week and
smoked marijuana during her pregnancy.
The NICU medical staff began treating G.G. with morphine
after learning defendant's history of opioid addiction,
including her efforts to self-medicate the symptoms of
withdrawal by using Suboxone during her pregnancy. G.G. spent a
total of twenty-two days in the hospital to recover from the
withdrawal symptoms. He was released to defendant and his
biological father in late May 2013.
2
K.M. testified the opioid-based prescription pain medication
she took was not prescribed to her by a physician. She took the
medication a physician prescribed for her friend to alleviate
the pain the friend experienced from a knee injury.
3
Suboxone is a controlled dangerous substance within the meaning
of N.J.S.A. 2C:35-2, and can be acquired legally in a pharmacy
only with a prescription from a licensed physician.
3 A-3662-13T3
On July 9, 2013, the Division filed an Order to Show Cause
(OTSC) and a Verified Complaint against defendant in the Family
Part pursuant to N.J.S.A. 30:4C-12, seeking legal custody of
G.G. and responsibility for his physical welfare and
supervision. That same day the Division amended the complaint
to charge defendant with abuse or neglect of G.G. under N.J.S.A.
9:6-8.21(c)(4). The Family Part granted the Division's request
and scheduled the return date for the OTSC for August 12, 2013.
By the time the case returned to the court, defendant had
completed substance abuse counseling and had attended supervised
visitation with G.G., who was by then cleared of any medical
issues related to his opioid withdrawal. The court conducted
fact-finding hearings on December 9, 2013, January 29, 2014,
February 18, 2014, and February 24, 2014. The evidence
presented at these hearings established that defendant became
addicted to oxycodone approximately four years before she gave
birth to G.G. in 2013. She began taking her friend’s
prescription pain medication to alleviate the pain caused by a
sprained ankle she suffered while playing college sports. She
continue to ingest this medication in pill form multiple times a
week until she realized she was pregnant in October 2012.
While pregnant, defendant came to the realization that
continuing to abuse these drugs would be detrimental to the
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welfare of the fetus. Based on the research she conducted
online, K.M. discovered that abruptly stopping the use of this
opioid analgesic could cause a miscarriage. She also learned
about the opioid analog Suboxone, that, according to defendant,
physicians prescribed to pregnant women to help with withdrawal
symptoms. However, instead of consulting a physician to confirm
Suboxone was safe to take while pregnant and thereafter obtain a
prescription for the medication, defendant again decided to
self-medicate by obtaining the drug from a friend. She
thereafter continued to use Suboxone throughout her pregnancy
and made the conscious decision not to disclose she was taking
this medication to her obstetrician.
Defendant called Dr. Loretta P. Finnegan as an expert
witness. The Family Part admitted Dr. Finnegan as an expert in
"pediatrics and with a specialty in the area of neonatology and
specifically prenatal addiction and neonatal abstinence
syndrome." Based on a 2010 study in the New England Journal of
Medicine which "compared the effects methadone versus
Buprenorphine" (the generic term for Suboxone),4 Dr. Finnegan
testified the study found "both medications were appropriate for
pregnant women."
4
Hendrée E. Jones et al., Neonatal Abstinence Syndrome After
Methadone or Buprenorphine Exposure, 363 New Eng. J. of Med.
2320 (2010).
5 A-3662-13T3
According to Dr. Finnegan, babies who are born after their
mothers have ingested Suboxone during pregnancy are closely
monitored every four hours after birth to determine the extent
of any withdrawals symptoms. Medical staff assess the severity
of the withdrawals using a twenty-one point score. The visual
symptoms include jerking, sneezing, loose stools, sucking,
hypertonia and tremors. Because defendant did not disclose she
took Suboxone to the medical staff who attended to her during
G.G.'s delivery, there was a three-day delay in the start of
treatment to alleviate the baby's withdrawal symptoms.
Dr. Finnegan testified that Suboxone is an appropriate
medication to administer to pregnant women withdrawing from
opioids. In her report, Dr. Finnegan opined that G.G.'s
withdrawal symptoms could have been exacerbated by the
hospital's course of treatment. Dr. Finnegan also stated in her
report that while "urine toxicology studies of G.G. did not
verify opioids were detected . . . one can deduce that there was
a passive transfer of opioids from the mother's blood
circulation to her fetus during pregnancy." When asked if G.G.
suffered from withdrawal from the drugs he was exposed to in
utero, Dr. Finnegan responded: "Yes."
Dr. Finnegan equated the symptoms G.G. experienced with
neonatal abstinence syndrome (NAS). The fact that the infant's
6 A-3662-13T3
symptoms subsided when the medical staff began morphine
treatment establishes G.G. was suffering from NAS. When asked
to opine whether G.G. suffered harm after birth, Dr. Finnegan
responded:
If you take harm in the strict sense of the
definition, it would mean that this baby had
some physical problem. The baby obviously
had a withdrawal. So, in the strict sense
of the word, you would say yes. However,
withdrawal is basically a side effect of
medication. The mother took medication
that's legally used in the medical community
for the treatment of opioid addiction.
Based on these uncontested facts, the Family Part judge
concluded defendant had abused or neglected G.G. within the
meaning of N.J.S.A. 9:6-8.21(c)(4)(a). The judge stated her
reasons in an oral opinion delivered from the bench at the
conclusion of the fact-finding hearing.
[Defendant] was addicted to Roxis and found
she was pregnant. She did not go to a
doctor at that point. She did research
online on Suboxone so she wouldn't have
withdrawals. I never heard it anywhere,
other then [sic] Dr. Finnigan's report, that
that was for her baby. In fact I got the
impression even from her it was for her own
withdrawal. She took it a couple of times a
week and indicated she never got a
prescription but she got it [from] friends.
We don't know how much she was taking. We
don't know what type - - if a drug is bought
off the street, we certainly don't know the
potency of it. We don't know if it's been
laced with something else, and basically
that was a very big risk for mom to take.
We have no information, we just know that
7 A-3662-13T3
she bought it off the streets or her
friends.
She never sought assistance from a pain
management doctor. She never told her
prenatal doctor. Never told the father of
the child, just continued to take the drug
during her entire pregnancy. And the fact
that she did not believe it was a drug, I
don't find credible. She knew it was
illegal to take this, and frankly she
indicated she was scared that they would
take her baby. She continued to do without
being monitored by a doctor throughout her
pregnancy, and I find that clearly is a
failure to provide a minimum degree of care.
. . . Also I think it's important to note,
that even when she was in the hospital and
questioned by the caseworker she continued
to say that she was not taking any drugs or
using any drugs.
In this appeal, defendant argues the record does not show
G.G. suffered actual physical, mental, or emotional harm due to
defendant's ingestion of Suboxone during her pregnancy. We
agree with defendant in this limited respect. However, the
question is not whether defendant ingested Suboxone during her
pregnancy or even that she did so clandestinely, without
disclosing it to her obstetrician. Defendant caused harm to
G.G. when she waited three days after delivering G.G. to
disclose to the neonatal staff that she had taken Suboxone.
Her failure to act in a more timely manner caused her infant son
needless suffering.
8 A-3662-13T3
The analysis in an abuse or neglect case should "focus on
the harm to the child and whether that harm could have been
prevented had the guardian performed some act to remedy the
situation or remove the danger." G.S. v. Dep't of Human Servs.,
157 N.J. 161, 182 (1999). Under N.J.S.A. 9:6-8.21(c)(4) an
"abused or neglected child" is
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 . . . to
exercise a minimum degree of care (a) in
supplying the child with adequate food,
clothing, shelter, education, medical or
surgical care though financially able to do
so or though offered financial or other
reasonable means to do so[.]
[(Emphasis added).]
In Department of Children & Families v. T.B., 207 N.J. 294,
306 (2011) (quoting N.J.S.A. 9:6-8.21(c)(4)), the Supreme Court
held that in order to find abuse or neglect the parent must fail
"to exercise a minimum degree of care." The Court has defined
"minimum degree of care" as denoting
a lesser burden on the actor than a duty of
ordinary care. If a lesser measure of care
is required of an actor, then something more
than ordinary negligence is required to hold
the actor liable. The most logical higher
measure of neglect is found in conduct that
is grossly negligent because it is willful
or wanton. Therefore, we believe the phrase
"minimum degree of care" refers to conduct
that is grossly or wantonly negligent, but
not necessarily intentional.
9 A-3662-13T3
[G.S., supra, 157 N.J. at 178 (quoting
N.J.S.A. 9:6-8.21(c)(4)).]
In New Jersey Division of Child Protection & Permanency v.
Y.N., 220 N.J. 165, 183, 187 (2014), the Supreme Court reversed
this court's decision finding a mother "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 sharp contrast to the uncontested facts here, the defendant
in Y.N. "followed the advice of a medical professional and later
entered into a methadone maintenance program." Id. at 184.
Mindful of the public policy implications of discouraging
opioid addicted pregnant women from seeking informed medical
advice if they were held liable for abuse or neglect under Title
9 after their children are born, the Court in Y.N. held:
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.
[Id. at 185-86 (emphasis added).]
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Here, we are satisfied defendant's conduct rises to the
level of grossly negligent as defined in G.S., supra, 157 N.J.
at 178, and as a consequence, we find that she committed an act
of neglect against G.G. under N.J.S.A. 9:6-8.21(c)(4)(a).
Although we recognize a mother's physical and emotional stress
after childbirth, see A.H.W. v. G.H.B., 339 N.J. Super. 495, 504
(Ch. Div. 2000), defendant was obligated to disclose the known
necessary information to avoid endangering the health of her
newborn child. Defendant willfully withheld the timely
disclosure of key medical information about medication she was
taking during her pregnancy that could have prevented three days
of needless suffering to her infant son. We emphasize that
defendant's decision to illicitly obtain Suboxone and thereafter
ingest the medication to treat her withdrawal symptoms without
consulting a physician do not bear any resemblance to the
prudent, medically sound course of action employed by the
defendant in Y.N. See Y.N., supra, 220 N.J. at 169-72, 184.
At this point, we must pause to make clear our disagreement
with the trial court's analysis in one respect. The Family
Part's analysis focused on defendant's conduct during her
pregnancy. Specifically, the court noted defendant "never
sought assistance from a pain management doctor. She never told
her prenatal doctor. Never told the father of the child, just
11 A-3662-13T3
continued to take the drug during her entire pregnancy." There
is no evidence in the record that this aspect of defendant's
conduct harmed G.G. in any way.
Defendant neglected her infant son within the meaning of
N.J.S.A. 9:6-8.21(c)(4)(a) when she failed to disclose in a
timely manner her use of Suboxone to the neonatal staff after
G.G. was born. If defendant had disclosed this information in a
timely fashion, the neonatal staff could have begun monitoring
G.G.'s condition in the manner consistent with Dr. Finnegan's
testimony and intervene with morphine treatment or other forms
of pharmacological treatment as the child's needs warranted.
The three days G.G. suffered with withdrawal symptoms could have
been avoided.
However, our disagreement with the trial court's analysis
in this respect is legally inconsequential. It is a long
settled principle of appellate jurisprudence that "an appeal is
taken from a trial court's ruling rather than reasons for the
ruling." State v. Adubato, 420 N.J. Super. 167, 176 (App. Div.
2011), certif. denied, 209 N.J. 430 (2012). We may affirm the
final judgment of the trial court "on grounds other than those
upon which the trial court relied." Ibid.
Affirmed.
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