New Jersey Division of Youth and Family Services v. Y.N., A-5880-11T2; Appellate Division; opinion by Guadagno, J.S.C., temporarily assigned; decided and approved for publication June 4, 2013. Before Judges Graves, Espinosa and Guadagno. On appeal from the Chancery Division, Family Part, Essex County, FN-07-297-11. [Sat below: Judge Bernstein.] DDS No. 20-2-0171 [15 pp.]

Y.N. (Yvonne) began to use drugs in 2005. In September 2010, she learned that she was pregnant. She had been taking opiates for several months and was admittedly addicted. In January 2011, she attended an intake appointment at American Habitare and Counseling Inc. to begin a methadone treatment program. She signed an informed consent form that advised the use of methadone could result in significant or serious effects on the unborn child, including physical dependence and irritability.

Yvonne gave birth to Paul at Morristown Memorial Hospital on Feb. 18, 2011. He tested positive for methadone and was diagnosed with neonatal abstinence syndrome due to his withdrawal symptoms. He was moved to the neonatal intensive-care unit, where morphine was necessary to ease his withdrawal.

On learning that Paul was due to be released from the hospital, DYFS placed a hospital hold on him that temporarily prevented his discharge. It then filed a complaint and order to show cause seeking custody, care and supervision of him. The Family Part judge held that DYFS had not established that Yvonne presented a risk of harm to Paul and released him to her custody pending a negative drug screening. DYFS retained care and supervision of him.

A fact-finding hearing was then held as to Yvonne. At its conclusion, the court found that DYFS had proved by a preponderance of the evidence that Yvonne abused or neglected Paul.

On appeal, Yvonne argues that she obtained the methadone from a legitimate program providing assistance from withdrawal and such cannot serve as a basis for an adjudication of abuse or neglect, and that a finding of abuse or neglect is contrary to established case law that permits a pregnant woman to be in control of her medical decisions.

Held: The Family Part’s finding of abuse or neglect is affirmed in light of the evidence of actual impairment as the result of the mother’s ingestion of methadone during pregnancy. Where there is evidence of actual impairment, it is immaterial whether the drugs were from a legal or illicit source.

The panel says the record contains abundant and compelling evidence of the harm Paul suffered during his withdrawal. His drug screen was positive for methadone and he was diagnosed with NAS. He had to be transferred to the NICU because of his withdrawal reaction. He was given oral doses of morphine every three hours to ease his withdrawal. Then, he had to be gradually weaned from the morphine, a process that took 39 days.

The panel says the fact that Yvonne obtained the methadone from a legal source does not preclude consideration of the harm it caused Paul. An inquiry under N.J.S.A. 9:6-8.21 must focus on the harm to the child, rather than on the intent of the caregiver. Harm to the child need not be intentional to substantiate a finding of abuse or neglect.

The panel says Paul’s severe withdrawal, which required treatment in the NICU and numerous doses of morphine over an extended period of time, is compelling evidence of actual impairment. Where there is evidence of actual impairment, it is immaterial whether the drugs taken were from a legal or illicit source.

The panel also rejects Yvonne’s claim regarding case law permitting a pregnant woman to be in control of medical decisions, even if such decisions have an adverse effect on the unborn child. It distinguishes the cases that she cites, finding they do not support her claim that a pregnant woman’s decision to ingest methadone cannot support a finding of abuse or neglect when the child suffers harm as a result.

For appellant — Clara S. Licata, designated counsel (Joseph E. Krakora, Public Defender). For respondent — Lisa Rusciano, Deputy Attorney General (Jeffrey S. Chiesa, Attorney General; Andrea M. Silkowitz, Assistant Attorney General, of counsel). For minor P.A.C. — Lisa M. Black, designated counsel (Joseph E. Krakora, Public Defender, Law Guardian).