DYFS v. A.L., A-28 September Term 2011; Supreme Court; opinion by Rabner, C.J.; decided February 6, 2013. On certification to the Appellate Division. DDS No. 20-1-8937 [44 pp.]

In this appeal, the court determines whether a court can find "abuse" or "neglect" of a child under Title 9 if an expectant mother uses drugs during pregnancy but there is no evidence of actual harm when the baby is born.

A.L. gave birth to a son, A.D. On admission to the hospital, A.L. tested positive for cocaine. A.D.’s urine was negative for cocaine; however, a test of his meconium, or first stool, revealed the presence of cocaine metabolites. A.D.’s health was otherwise normal, and he was discharged after two days.

The hospital reported A.L.’s positive drug screen to the New Jersey Division of Child Protection and Permanency (formerly the Division of Youth and Family Services), which started an investigation. The division learned that A.L. had tested positive for marijuana in her fifth month of pregnancy. A.L. denied ever using drugs, claiming that she may have accidentally ingested cocaine and inhaled marijuana. The division interviewed T.L., A.L.’s son, T.D., A.D.’s father, and A.L.’s parents, with whom the family lived, and conducted a safety assessment at the home. The division concluded the allegation of neglect against A.L. was substantiated and that a safety protection plan was required.

The division filed a complaint for care and supervision of A.D. and T.L. and moved for a finding of abuse or neglect against A.L. under N.J.S.A. 9:6-8.21. At the fact-finding hearing, the division introduced four documents: (1) a screening summary, which summarized the hospital referral; (2) the investigation summary, which recounted the division’s interviews; (3) the safety protection plan; and (4) the hospital records. The division conceded it could not prove actual harm to the child based on these documents, but asserted there was a substantial risk of harm to A.D. based on A.L.’s prenatal drug use.

The trial court concluded that A.L.’s prenatal drug use, without more, when corroborated by A.D.’s positive meconium testing, is sufficient to establish that A.D. is an "abused or neglected child" under N.J.S.A. 9:6-8.21(c)(4)(b).

The Appellate Division affirmed the court’s finding of abuse and neglect. The panel rejected A.L.’s argument that exposure of a fetus to cocaine is not a recognized harm under Title 9, without proof of risk of harm to the child after birth. The court granted certification.

Held: The finding of abuse and neglect under Title 9 based on A.L.’s prenatal drug use cannot be sustained because the division failed to show actual harm or demonstrate imminent danger or a substantial risk of harm to the newborn child, which N.J.S.A. 9:6-8.21(c)(4)(b) specifically requires.

Title 9 governs acts of abuse and neglect against a child. The focus in abuse and neglect matters is on promptly protecting a child who has suffered harm or faces imminent danger. The language of the abuse and neglect statute reveals that it applies to a child and not a fetus. Therefore, the statute’s protection is limited to the condition of a child after birth. If 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. If there is no evidence of actual harm, though, the statute requires a showing of "imminent danger" or a "substantial risk" of harm before a parent or guardian can be found to have abused or neglected a child.

In this case, the division conceded that there was no evidence of actual harm to the newborn. To show risk of harm, the division presented four documents but no testimony. The documents revealed that the mother tested positive for cocaine on admission to the hospital. They also showed the presence of cocaine metabolites in the baby’s meconium. The court finds that the records alone did not prove imminent danger or a substantial risk of harm to the newborn child.

In the absence of actual harm, proof that a child’s mother frequently used cocaine or other dangerous substances during pregnancy would be relevant to the issue of imminent danger and substantial risk of harm. But 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 the statute. The proper focus is on the risk of substantial, imminent harm to the child, not on the past use of drugs alone. The court finds the division did not carry its burden of proof to establish abuse or neglect under Title 9 by a preponderance of the evidence.

The judgment of the Appellate Division, which affirmed the trial court’s finding of abuse and neglect, is reversed.

Justices LaVecchia, Albin, Hoens and Patterson join in Chief Justice Rabner‘s opinion.

For appellant — Clara S. Licata, designated counsel (Joseph E. Krakora, Public Defender Parental Representation; Licata, Beatrix W. Shear and T. Gary Mitchell, Deputy Public Defenders, on the briefs). For respondents: New Jersey Department of Children and Families, Division of Youth and Family Services — James D. Harris, Deputy Attorney General (Jeffrey S. Chiesa, Attorney General; Andrea M. Silkowitz and Melissa H. Raksa, Assistant Attorneys General, of counsel); T.L and A.D. — Noel C. Devlin, Assistant Deputy Public Defender, Law Guardian (Joseph E. Krakora, Public Defender). For amici curiae: Legal Services of New Jersey — Jeyanthi C. Rajaraman (Melville D. Miller Jr., President; Rajaraman, Miller and Mary M. McManus-Smith on the brief); Experts and Advocates in Maternal and Fetal Health, Child Welfare, Public Health and Drug Treatment — Lawrence S. Lustberg (Gibbons; Lustberg and Emma S. Ketteringham, of the N.Y. bar, on the briefs).