Because most medicines and drugs pass through a mother’s placenta to her unborn baby, a mother’s illegal drug use during pregnancy can cause the child to suffer from neonatal abstinence syndrome (NAS). The Centers for Disease Control and Prevention (CDC) reports that, “according to 2016 data from the Healthcare Cost and Utilization Project … seven newborns were diagnosed with NAS for every 1,000 newborn hospital stays. That is approximately one baby diagnosed with NAS every 19 minutes in the United States, or nearly 80 newborns diagnosed every day.” 

Commonly, hospital staff will contact Child Protective Services (CPS) to inform them of the mother’s and baby’s compromised medical status. Whatever the short-term placement decision is for the baby—whether to remain with the mother, to be placed with the mother’s spouse or partner, or with a non-relative—an investigation can yield a finding of abuse and/or neglect. Toward that end, many legal questions will need to be addressed:

  • What drug use during pregnancy constitutes harm to a child under the relevant state legislative, regulatory, and case law scheme?
  • What evidence will be needed and admissible?
  • How credible and substantial must the evidence be? 
  • What witnesses can be and should be called? 
  • What constitutes an opinion within a reasonable degree of medical certainty?