DCPP VS. Z.S. AND G.N.IN THE MATTER OF Z.N. (FN-09-0463-15, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0547-16T1

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

Z.S.,

Defendant-Appellant,

and

G.N.,

Defendant.
________________________________

IN THE MATTER OF Z.N.,

A Minor.
________________________________

Submitted November 2, 2017 – Decided November 13, 2017

Before Judges Haas and Rothstadt.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-0463-15.

Joseph E. Krakora, Public Defender, attorney
for appellant (Albert M. Afonso, Designated
Counsel, on the brief).
 Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Julie
B. Colonna, Deputy Attorney General, on the
brief).

Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Lisa M. Black,
Designated Counsel, on the brief).

PER CURIAM

Defendant Z.S.1 appeals from the Family Part's November 13,

2015 order, following a fact-finding hearing, determining that

defendant abused or neglected her infant daughter, Z.N. (Zoe).

The trial judge found that defendant caused actual harm to her

child as a result of her drug use during pregnancy, which caused

the baby to be born with severe withdrawal symptoms, and required

the infant to be treated with morphine during an extended, four-

week-long hospital stay.2

Defendant challenges the trial judge's finding that her

conduct constituted abuse or neglect under N.J.S.A. 9:6-

8.21(c)(4)(b). The Law Guardian supports the judge's finding that

the Division of Child Protection and Permanency (Division) met its

1
We use initials and fictitious names to protect the privacy of
the family.
2
This order became appealable as of right after the trial court
entered a final order on August 25, 2016, terminating the
litigation and permitting the Division to institute a guardianship
proceeding.

2 A-0547-16T1
burden of proving abuse or neglect by a preponderance of the

evidence. Based upon our review of the record and applicable law,

we affirm.

When defendant gave birth at the hospital, she tested positive

for benzodiazepines, opiates, and cannabis. Zoe exhibited

withdrawal symptoms at birth. The hospital transferred the baby

to a Neonatal Intensive Care Unit (NICU) at another hospital for

specialized care, and referred the case to the Division. When

questioned by a Division caseworker, defendant acknowledged the

results of her drug test, but denied using drugs during the

pregnancy.

At the fact-finding hearing, the Division called Dr. Zarah

Jane Pua, a neonatologist who treated the baby at the NICU, as its

only witness. Dr. Pua testified that, at birth, Zoe was having

withdrawal symptoms and exhibited signs of Neonatal Abstinence

Syndrome, which "is a compilation of clinical symptoms that is

exhibited by a newborn who [is] exposed to drugs, specifically

[and] especially opiates, while the mom is pregnant." Dr. Pua

observed that the baby was "very jittery[,] . . . wasn't eating[,]

. . . she wasn't sleeping between her feeds[,] [and] [s]he had

some . . . respiratory distress, a little bit of increased

respiratory rate." To address Zoe's condition, Dr. Pua treated

her with morphine because that drug "decreases side effects" that

3 A-0547-16T1
babies suffer as they are "withdrawing." The morphine treatment

continued from June 3 through June 29, 2015.

Zoe tested positive for marijuana, but not for opiates. Dr.

Pua explained that this was not unusual because it is difficult

to get an uncontaminated urine sample from an infant. In addition,

the testing for opiates occurred the day after Zoe was transferred

to the NICU. Dr. Pua opined that, by that time, it was possible

that the "[opiates] got passed through the placenta from the mom

to the baby and got excreted before we got to get the urine

sample."

Defendant did not testify or even appear at the hearing, and

her attorney did not call any witnesses.

At the conclusion of the hearing, the trial judge rendered

an oral decision, finding that the Division established by a

preponderance of the evidence that defendant abused or neglected

Zoe by taking drugs during her pregnancy, which caused the baby

to be born with severe withdrawal symptoms. This appeal followed.

On appeal, defendant contends the judge erred by concluding

that she abused or neglected Zoe. We disagree.

Our review of the trial judge's factual finding of abuse or

neglect is limited; we defer to the court's determinations "'when

supported by adequate, substantial, credible evidence.'" N.J.

Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89

4 A-0547-16T1
(App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12

(1998)). The trial court is best suited to assess credibility,

weigh testimony and develop a feel for the case, and we extend

special deference to the Family Part's expertise. N.J. Div. of

Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010);

Cesare, supra, 154 N.J. at 413.

Unless the trial judge's factual findings are "so wide of the

mark that a mistake must have been made" they should not be

disturbed, even if we would not have made the same decision if we

had heard the case in the first instance. N.J. Div. of Youth &

Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation

marks and citation omitted). "It is not our place to second-guess

or substitute our judgment for that of the family court, provided

that the record contains substantial and credible evidence to

support" the judge's decision. N.J. Div. of Youth & Family Servs.

v. F.M., 211 N.J. 420, 448-49 (2012).

In pertinent part, 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 . . .
to exercise a minimum degree of care . . . in
providing the child with proper supervision
or guardianship, by unreasonably inflicting or
allowing to be inflicted harm, or substantial
risk thereof, including the infliction of

5 A-0547-16T1
 excessive corporal punishment; or by any other
acts of a similarly serious nature requiring
the aid of the court[.]

In order to prevail in a proceeding alleging abuse or neglect

due to the mother's substance abuse during pregnancy, the Division

"must prove present or future harm to a child by a preponderance

of the evidence." N.J. Dep't of Youth & Family Servs. v. A.L.,

213 N.J. 1, 22 (2013). "[T]he primary question under Title 9 is

whether . . . a newborn, 'ha[d] been impaired' or was in 'imminent

danger of becoming impaired' as a result of his [or her] mother's

failure to exercise a minimum degree of care by unreasonably

inflicting harm or allowing a 'substantial risk' of harm to be

inflicted." Ibid. (quoting N.J.S.A. 9:6-8.21(c)(4)(b)) (first

alteration in original).

As defendant correctly points out, "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" N.J.S.A. 9:6-8.21(c)(4)(b). Id. at 23.

Indeed, if there is no evidence of actual harm to the newborn, a

mother cannot be found to have committed an act of abuse or neglect

merely because she ingested drugs while pregnant. Id. at 8.

However, "proof that a child is suffering from withdrawal

symptoms at birth [can] establish actual harm." Id. at 22; see

also In re Guardianship of K.H.O., 161 N.J. 337, 349 (1999) (noting

6 A-0547-16T1
that "a child born addicted to drugs and suffering from the

symptoms of drug withdrawal as a result of the mother's substance

abuse during pregnancy has been harmed by the mother and that harm

endangers the child's health and development"). In A.L., the

Court noted that "the Division can prove actual harm by showing

evidence of respiratory distress, cardiovascular or central

nervous system complications, low gestational age at birth, low

birth weight, poor feeding patterns, weight loss through an

extended hospital stay, lethargy, convulsion, or tremors." A.L.,

supra, 213 N.J. at 22-23.

Contrary to defendant's argument, the evidence here is much

different than in A.L. In A.L., there was no evidence of actual

harm to the newborn who, despite testing positive for cocaine at

birth, was otherwise born healthy and discharged from the hospital

after only two days. Id. at 8. In this case, defendant tested

positive for opiates and other drugs and this drug use clearly

harmed Zoe. The child was not born healthy and Dr. Pua diagnosed

her with Neonatal Abstinence Syndrome. Zoe experienced severe

withdrawal symptoms, including tremors, respiratory distress, and

problems with eating. The newborn baby had to be hospitalized and

treated with morphine for nearly a month.

The present case is also completely distinguishable from N.J.

Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165 (2014). In

7 A-0547-16T1
that case, the mother gave birth while she was participating in a

methadone program on the advice of her doctor. Id. at 169-70.

Even though the baby suffered from methadone withdrawal, the Court

held "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 had

made full disclosure." Id. at 185-86. Here, defendant never

claimed that she was participating in any bona fide, physician-

approved treatment program when she tested positive for

benzodiazepines, opiates, and cannabis when Zoe was born.

Under these circumstances, we are satisfied there was more

than sufficient evidence to support the judge's finding that

defendant abused or neglected Zoe by ingesting drugs during her

pregnancy that caused actual harm to the newborn baby.

Affirmed.

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