DCPP VS. A.S. AND S.R., IN THE MATTER OF R.R. (FN-12-0227-15, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-5426-15T3

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

A.S.,

Defendant-Appellant,

and

S.R.,

Defendant.
________________________________

IN THE MATTER OF R.R., a Minor.
________________________________

Submitted March 22, 2018 – Decided August 13, 2018

Before Judges Rothstadt and Gooden Brown.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket No. FN-12-0227-15.

Joseph E. Krakora, Public Defender, attorney
for appellant (Lora B. Glick, Designated
Counsel, on the brief).
 Gurbir S. Grewal, Attorney General, attorney
for respondent (Melissa Dutton Schaffer,
Assistant Attorney General, of counsel;
Christina A. Duclos, 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 A.S.1 appeals from the Family Part's December 8,

2015 order. Following a fact-finding hearing, the trial court

determined that defendant abused or neglected her infant son,

R.R., within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b), by using

prescription medications during her pregnancy, which resulted in

R.R. suffering withdrawal symptoms at birth.2 On appeal, defendant

argues the Division of Child Protection and Permanency (Division)

failed to establish by a preponderance of the evidence that she

failed to exercise a minimum degree of care in connection with her

use of prescription medications during her pregnancy, and the

trial court's finding to the contrary was erroneous. Based on our

review of the record and the applicable legal principles, we agree

and reverse.

1
We use initials to protect the confidentiality of the
participants in these proceedings pursuant to Rule 1:38-3(d).
2
There was no finding against S.R., R.R.'s biological father.

2 A-5426-15T3
 We glean the following facts from the record developed over

the course of the two-day fact-finding hearing, during which the

Division presented a single witness, Tara Cannon, a Division intake

worker. The court also admitted numerous documentary exhibits

into evidence, including Cannon's investigation summary,

defendant's medical records, and records from JFK Medical Center

where R.R. was born. The circumstances leading to the Title Nine

litigation began on February 19, 2015, when Cannon received a

referral from a social worker at JFK Medical Center alleging that

R.R. and defendant tested positive for benzodiazepine two days

after R.R.'s birth. In response to these allegations, the Division

executed an emergency removal of R.R., pursuant to N.J.S.A. 9:6-

8.293 and 9:6-8.30, and later filed a verified complaint for

custody, care, and supervision of R.R., pursuant to N.J.S.A. 9:6-

8.21 and 30:4C-12.

Cannon testified that after speaking to the hospital social

worker, she visited R.R. in the neonatal unit of the hospital and

spoke with defendant about her prenatal drug use. Defendant told

Cannon she had been prescribed several pain medications for a

previous car accident, including oxymorphone, oxycodone, Soma, and

3
N.J.S.A. 9:6-8.29 permits the emergency removal of a child from
the parent's custody without a court order.

3 A-5426-15T3
Naproxen. Defendant was also taking Xanax, a benzodiazepine, for

anxiety, and Adderall, an amphetamine, for ADHD.4 Defendant told

Cannon that her pain management doctor, Dr. Manoj Patharkar, was

unaware of her pregnancy. Defendant also informed Cannon that Dr.

Charles M. Fleisch, her obstetrician/gynecologist (OB/GYN), was

aware that she was taking the medications prescribed by Patharkar,

and he "was weaning her off" of them. Cannon obtained defendant's

medical records from Partharkar and Fleisch as well as her medical

records from Doctors Medi Center, where she was treated for

respiratory issues. Additionally, Cannon obtained the hospital

records for R.R.'s birth.

Patharkar's records confirmed that defendant had not informed

him of her pregnancy prior to R.R.'s birth. Fleisch's records

revealed that defendant began prenatal treatment with him as early

as July 24, 2014, which would have been in the first trimester of

her pregnancy.5 The records further revealed that defendant

underwent two drug screenings while under Fleisch's care: the

4
Defendant also told Cannon that she was prescribed medication
for bipolar disorder, but she had "stopped taking [the] medication
because she was pregnant" and was not under the care of a
psychiatrist at the time.
5
Cannon also obtained a letter from Fleisch summarizing his
treatment of defendant. However, the court sustained defense
counsel's objection to its admission into evidence, ruling that
the letter was written "in regard to potential litigation and was
not really a business record." See N.J.R.E. 803(c)(6).

4 A-5426-15T3
first, a urine specimen collected about a month before R.R.'s

birth, on January 22, 2015, and reported on January 29, 2015; the

second, a whole blood specimen, collected twenty days before R.R.'s

birth, on February 5, 2015, and reported on February 19, 2015.

The first report revealed that defendant tested positive for both

amphetamines and opiates, but negative for benzodiazepines. On

the first page of the first report, there were two handwritten

notes, one stating that "she stopped all pain meds last week," and

the other stating "pain Dr." and "Parthakar," along with a phone

number. The second report revealed that defendant's blood tested

positive for oxycodone but negative for opiates, amphetamines, and

"Oxycodone, Unconjugated." Upon admission to JFK Medical Center

for R.R.'s delivery on February 17, 2015, defendant tested positive

for Xanax, but negative for amphetamines and opiates.

Hospital records revealed that R.R.'s meconium, or first

stool, tested positive for oxymorphone and benzodiazepine. R.R.

was placed on morphine for withdrawal symptoms associated with

neonatal abstinence syndrome (NAS). His withdrawal symptoms

included uncontrollable sucking, difficulty breathing, poor weight

gain, and frequent stirring. R.R. remained in the neonatal

intensive care unit for twenty-four days before being discharged

on March 11, 2015.

5 A-5426-15T3
 Following the fact-finding hearing, the court issued an oral

decision on December 8, 2015, finding that defendant had failed

to exercise a minimum degree of care and unreasonably inflicted

harm on R.R. The court found Cannon to be "a credible witness,"

remarking that "[s]he was clear and concise, . . . recalled

events," and was not evasive in answering questions. Next, relying

on N.J.S.A. 9:6-8.21(c)(4)(b) and New Jersey Division of Child

Protection & Permanency v. Y.N., 220 N.J. 165 (2014), the court

noted that "[t]he statute makes very clear that . . . parental

fault is an essential element of a finding of abuse or neglect"

and "does not suggest that a finding of abuse or neglect can be

premised solely on . . . harm caused to a child without

consideration of the reasonableness of the parents' conduct."

Turning to the facts of the case, the court determined that

"there was clearly evidence of harm in the sense that the child

was positive for . . . benzo[diazepine], as well as opiates" and

"had to be treated with morphine by hospital personnel." The

court further found "that there was respiratory distress, there

[were] concerns with the child's ability to swallow and to suck[,]

and the child remained in the hospital for three weeks and had to

be weaned off the morphine that was treating the withdrawal

symptoms."

6 A-5426-15T3
 In considering parental fault, the court acknowledged that

defendant "was seeing her pain management doctor" and was

prescribed each of her medications. The court also credited

defendant for seeing an OB/GYN who "was aware of the drugs that

she was taking" and who had instructed her to "lower her Oxycodone,

[and] stop the Xanax." However, according to the court:

[Defendant] [told] the caseworker that Dr.
Fleisch [was] weaning her off. [There was]
no information that Dr. Fleisch [was] weaning
her off anywhere. [There was] no proof in his
record indicating that, other than the
information where she should lower her
Oxy[codone] and stop Xanax. Nowhere [did] he
say [he was] weaning her off and, again, [he
was] not prescribing them, Patharkar [was] and
[Patharkar] [did not] even know [she was]
pregnant and he certainly [was not] weaning
her off because he didn't know she was
pregnant . . . , so [he was] not monitoring
her and the baby. . . . Fleisch appear[ed] to
be thinking that her pain management doctor
may [have been] . . . doing that but
[defendant] [did not] seek medical help for
her and her child. She [did not] enter a
treatment that would address her and her
child's needs. She [did not] consult the
doctor and give a full disclosure of her
circumstances. She just continue[d] with her
pain management doctor getting the medications
for her pain without telling him [she was]
pregnant and she [went] over to the OB/GYN and
[said], oh, yeah, I'm getting these
prescriptions and [Fleisch] [made]
recommendations that she should lower certain
things but she [did not] do it, and neither
one of them [had] any contact with each
other . . . .

7 A-5426-15T3
 Based on this assessment, the court distinguished Y.N., and

concluded that defendant failed to exercise the requisite minimum

degree of care. The court explained:

In this case, Patharkar didn't know she was
pregnant. So, between not telling Patharkar
that and not being completely upfront, I
believe, with the caseworker that Dr. Fleisch
was weaning her off, those are two very big
concerns the [c]ourt has. [Defendant] wasn't
giving full disclosure, very different from
the case in Y.N. She failed to exercise a
minimum degree of care by not disclosing the
information to Dr. Patharkar and continuing
to take all of her medications and
unreasonably inflicting harm on this child.
This is not Y.N. where a parent may cause
injury to a child to protect that child from
greater harm. She didn't do what the woman
in Y.N. did. She continued taking her
medications without telling the doctor so
there was a lack of full disclosure and she
was pregnant during that time. So, there was
no treatment program weaning her off, there
was no full disclosure and this [c]ourt finds
by a preponderance of evidence that she failed
to exercise a minimum degree of care and
unreasonably inflicted the harm on the child.

The court entered a memorializing order to that effect, and later

entered an order on July 8, 2016, terminating the litigation. This

appeal followed.

On appeal, defendant argues that "[t]he court's findings are

not supported by the evidence and are based on an improper legal

standard" because she "secured timely prenatal care and followed

the recommendations of her [OB/GYN], Dr. Fleisch," "to whom she

8 A-5426-15T3
had made full disclosure." Although defendant passingly notes

that "expert testimony may have been helpful to establish harm"

to R.R., she acknowledges that the records of R.R.'s

hospitalization in the neonatal intensive care unit for morphine

withdrawal symptoms constituted sufficient evidence of harm.

However, defendant argues the "court misinterpreted the holding

in Y.N. to find that [she] failed to exercise the minimum degree

of care and unreasonably caused harm to her newborn" by "focus[ing]

on evidence of harm to the child while ignoring the lack of

evidence of parental fault." We agree.

We accord deference to the Family Part's fact-finding in part

because of the court's "special jurisdiction and expertise in

family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). We

will uphold the trial court's fact finding if supported by

sufficient, substantial, and credible evidence in the record

because the judge has had the opportunity to observe witnesses,

weigh their credibility, and develop a "'feel' of the case." N.J.

Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279, 293

(2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

However, we will not hesitate to set aside a ruling that is "so

wide of the mark that a mistake must have been made." N.J. Div.

of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 38 (2011) (quoting

M.M., 189 N.J. at 279) (reversing a court's "medical neglect"

9 A-5426-15T3
finding for lack of sufficient evidential support). We also accord

no deference to the trial court's "interpretation of the law and

the legal consequences that flow from established facts."

Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995).

Under N.J.S.A. 9:6-8.21(c)(4)(b), to establish "abuse or

neglect," the Division bears the burden of proving by a

preponderance of the competent, material, and relevant evidence

that a parent: 1) failed to exercise a "minimum degree of care"

and (2) "unreasonably inflict[ed] or allow[ed] to be inflicted

harm, or substantial risk thereof." Y.N., 220 N.J. at 178-80

(quoting N.J.S.A. 9:6-8.21(c)(4)(b)). Thus, "[t]he 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)." Y.N., 220

N.J. at 180.

Our Supreme Court has defined the phrase "minimum degree of

care" as:

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, . . . the phrase "minimum
degree of care" refers to conduct that is
grossly or wantonly negligent, but not
necessarily intentional.

10 A-5426-15T3
 [G.S. v. N.J. Div. of Youth & Family Servs.,
157 N.J. 161, 178 (1999).]

"Conduct is considered willful or wanton if done with the

knowledge that injury is likely to, or probably will, result."

Ibid. "Because risks that are recklessly incurred are not

considered unforeseen perils or accidents in the eyes of the law,

actions taken with reckless disregard for the consequences also

may be wanton or willful." Ibid. Even if the parent is unaware

of the "highly dangerous character of her conduct," if "the act

or omission that causes the injury is done

intentionally . . . , [k]nowledge will be imputed to the actor,"

and the parent will be liable. Ibid.

In connection with prenatal drug use, although the abuse and

neglect statute "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." N.J. Div. of Youth & Family

Servs. v. A.L., 213 N.J. 1, 22 (2013). Although "not every

instance of drug use by a parent during pregnancy, standing alone,

will substantiate a finding of abuse and neglect," id. at 23,

"[i]f 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." Id. at 8. "[P]roof

11 A-5426-15T3
that a child is suffering from withdrawal symptoms at birth could

establish actual harm." Id. at 22.

In Y.N., 220 N.J. at 183, the Court was tasked with

determining whether a mother committed abuse or neglect where her

newborn "suffered [NAS] as a result of her participation in a

medically prescribed methadone maintenance treatment program." In

making its decision, the Court took note of the "perverse

disincentive" of holding a woman liable for obtaining "timely

medical advice" in an attempt to reduce the potential harms facing

her child. Id. at 184. Thus, the Court 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.]

In contrast, in New Jersey Division of Child Protection &

Permanency v. K.M., 444 N.J. Super. 325, 331-32 (App. Div. 2016),

we upheld a finding of neglect under N.J.S.A. 9:6-8.21(c)(4)(a)

where, for three days, a mother failed to disclose to neonatal

staff at the hospital where her child was born that she had taken

12 A-5426-15T3
Suboxone during her pregnancy without a prescription. Finding

that defendant's conduct rose to the level of grossly negligent

as defined in G.S., 157 N.J. at 178, we determined:

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.

[K.M., 444 N.J. Super. at 333.]

Applying these principles, we are persuaded that the

Division's proofs fell short under the circumstances presented in

this case. Although Cannon introduced defendant's medical

records, she offered no testimony interpreting or explaining the

contents of those records, nor did she testify from personal

knowledge about defendant's prenatal care. Therefore, to the

extent that the court's finding of parental fault was based on its

interpretation of defendant's medical records rather than

testimony, we accord no special deference to those findings.

"Instead of filling in missing information, an understandable

response by judges who regularly witness the evils inflicted on

13 A-5426-15T3
children by their parents' drug use, judges must engage in a fact-

sensitive analysis turning on 'particularized evidence.'" N.J.

Div. of Child Prot. & Permanency v. R.W., 438 N.J. Super. 462, 470

(App. Div. 2014) (quoting A.L., 213 N.J. at 28).

In its findings, the court relied on the two drug test results

culled from Fleisch's medical records to conclude that defendant

disregarded Fleisch's recommendation to lower her ingestion of

pain medications. Despite the court's certitude, in the absence

of testimony, the record is unclear about when or to what extent

Fleisch directed defendant to reduce her ingestion of prescription

medications and is, at best, inconclusive regarding whether or not

defendant followed Fleisch's directive. Although the drug tests

revealed the presence of amphetamines and opiates, by the time

defendant was admitted to JFK Medical Center for R.R.'s delivery

about a month later, defendant's drug screen was positive only for

benzodiazepine and negative for amphetamines and opiates. This

was consistent with the handwritten note appearing on the report

of the January 22, 2015 drug screen, indicating that defendant had

"stopped all pain meds last week." Defendant was taking Xanax, a

benzodiazepine, that was prescribed for her anxiety, not pain.

In the absence of expert testimony to explain and interpret

the results, the court should not have intuited the meaning of the

test results on its own. See Mullarney v. Bd. of Review, 343 N.J.

14 A-5426-15T3
Super. 401, 408 (App. Div. 2001) (holding defendant's argument was

"so esoteric that a fact-finder of common judgment and experience

cannot [form a] valid judgment on the contention without the

assistance of expert testimony"). Undoubtedly, the record shows

that defendant used prescription pain medications during her

pregnancy, which led to R.R. suffering harm after his birth.

However, the record also shows that defendant attempted to avoid

this harm by obtaining prenatal care early in her pregnancy,

disclosing her prescribed medications to her OB/GYN, and, at least

to some degree, following his recommendation that she reduce her

intake of those drugs. Although defendant did not disclose her

pregnancy to Patharkar, who prescribed the pain medications, she

took prescription pain medications in accordance with legitimate

medical advice.

Because defendant obtained prenatal care from a licensed

healthcare professional to whom she made full disclosure, and

there was no evidence that defendant took drugs other than those

duly prescribed by a licensed medical practitioner, we conclude

that defendant is more akin to the mother in Y.N., 220 N.J. at

168, than the mother in K.M., 444 N.J. Super. at 331. We recognize

that the medications were not prescribed under the auspices of a

bona fide treatment program to combat a prenatal drug addiction,

as was the methadone in Y.N., 220 N.J. at 168. However, Fleisch

15 A-5426-15T3
was a licensed healthcare professional from whom defendant

obtained prenatal care and to whom defendant made full disclosure

about her ingestion of prescribed medications and, at least to

some degree, followed his recommendation that she reduce her intake

of those drugs. Defendant may have been negligent in complying

with Fleisch's directive, but the record does not support a finding

of gross negligence constituting a failure to exercise a minimum

degree of care as defined in G.S., 157 N.J. at 178. Thus, the

court's conclusion that defendant committed abuse and neglect was

"wide of the mark," M.M., 189 N.J. at 279, and not sustainable.

Reversed.

16 A-5426-15T3