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NOT FOR PUBLICATION WITHOUT THE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