Opinion
DOCKET NO. A-2241-13T2
01-29-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. T.G., Defendant-Appellant, and S.N., Defendant. IN THE MATTER OF M.N., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Christensen, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-33-13. Joseph E. Krakora, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Christensen, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant T.G. appeals from the Family Part's December 18, 2012 order finding that she abused or neglected her infant daughter M.N. (Mae), born April 21, 2012. The court found that defendant abused or neglected Mae in two ways. First, defendant used drugs during her pregnancy, which caused Mae to test positive shortly after birth and suffer withdrawal symptoms. Second, during the weeks after Mae was discharged, defendant failed to take Mae to pediatric appointments, and failed to recognize that Mae was failing to thrive.
Although defendant addressed the July 18, 2013 permanency order in her amended notice of appeal, she failed to argue the matter in her brief, aside from a passing mention of the issue, without a separate point heading. We therefore consider the appeal from this order waived. See Mid-Atlantic Solar Energy Indus. Ass'n v. Christie, 418 N.J. Super. 499, 508 (App. Div.), certif. denied, 207 N.J. 190 (2011). Further, any appeal of the permanency order was mooted by the dismissal of the Title 9 litigation and the Division's filing a guardianship complaint. See N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 263-64 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010).
T.G. presents three points on appeal: (1) the finding of abuse or neglect was not adequately supported by the record; (2) the court erred in denying defendant's request to adjourn the initial order-to-show cause hearing; and (3) defendant was denied effective assistance of counsel. The Law Guardian joins the Division of Child Protection and Permanency (Division) in opposing T.G.'s appeal.
Having carefully reviewed defendant's arguments in light of the record and applicable principles of law, we are constrained to reverse the finding of abuse or neglect, and remand for further proceedings.
I.
The sole witness at the fact-finding hearing was Division caseworker Yolene Plaisir. The Division also introduced into evidence, without objection, voluminous Division records, including screening summaries, contact sheets, an investigation summary, a safety protection plan, and a SPRU [Special Response Unit] Report. Also admitted into evidence without objection were a substance abuse evaluation and related reports; hospital records related to Mae's birth and in-hospital care; and pediatric records after her discharge. We discern the following facts from this record.
Defendant was thirty years old when Mae was born. She was unemployed and not living with the father. Her parents died when she was five, and she was raised by her aunt, D.G.
At various points in the record D.G., whom defendant considered her mother, is referred to as MGM, or the maternal grandmother of Mae.
From the time she was a young girl, defendant experienced anxiety issues for which she was prescribed anti-anxiety medications. Most recently, she had a prescription for Lorazepam, a benzodiazepine, from a psychiatrist who had been treating her since September 2011. Defendant reported to the physician that she had been taking Xanax, another anti-anxiety medicine. Concerned about Xanax's deleterious impact on a fetus, the psychiatrist prescribed what he called a low dose of Lorazepam — 1 mg three times a day — to balance defendant's need for an anxiety medicine, and the need to protect the child. The psychiatrist asserted he did so in consultation with defendant's obstetrician, but the Division was unable to confirm that with the obstetrician.
During pregnancy, defendant also took Subutex, which she described as an opiate blocker. She explained she suffered chronic pain from a car accident that occurred when she was twelve. She was prescribed opioid painkillers by a physician when she was in her twenties. She continued to have urges to use opiates during her pregnancy. The psychiatrist apparently prescribed the Subutex.
Subutex is a formulation of buprenorphine, which is one of three drugs approved by the Food and Drug Administration, along with methadone and naltrexone, to combat addiction to opiates, such as OxyContin. See Melissa M. Ferrara, Comment, The Disparate Treatment of Addiction-Assistance Medications and Opiate Pain Medications Under the Law: Permitting the Proliferation of Opiates and Limiting Access to Treatment, 42 Seton Hall L. Rev. 741, 742-43 (2012).
Defendant did not begin prenatal care until the end of December 2011. She refused a blood test during a January 2012 visit. According to an oral report to the Division by a staffperson at the obstetrics practice, defendant tested positive for opiates and cocaine in January 2012. However, defendant was not immediately notified of the results. Defendant questioned the alleged test results when confronted with them by the Division.
The Division did not introduce the actual test results at the hearing.
The day after Mae was born, hospital personnel notified the Division that Mae and defendant had tested positive for benzodiazepines. The record contained the results of a urine test and a meconium test; both were negative for cocaine and opiates. The urine test was positive for benzodiazepine, but the meconium test was not. There was some evidence that before delivery, defendant had taken more of the Lorazepam than was prescribed, which we will discuss at greater length below. The Division learned of defendant's Lorazepam and Subutex prescriptions in discussions with defendant. Defendant also disclosed that she had a history of recreational drug use.
Mae was born April 21, 2012 at thirty-eight weeks gestation. She weighed six pounds, six ounces, and was nineteen inches in length. She experienced respiratory difficulties and jaundice after birth. She was also treated for "presumptive sepsis." She was described in hospital records as "Infant of Drug Dependent Mom." Mae was diagnosed with Neonatal Abstinence Syndrome (NAS). Defendant was initially reluctant to authorize morphine treatment recommended by Mae's physicians, but she consented after a Division worker reviewed the issue with her on April 28, 2012.
The Division presented defendant's reluctance at the hearing as evidential of her neglect. However, defendant's fear of administering morphine, an opiate, to her newborn was understandable, given the origin of defendant's own personal addiction to opiates.
Mae remained in the hospital until May 28, 2012. According to the SPRU report, "the hospital had no concerns with the child going home with mother . . . ." Upon discharge, Mae was prescribed Zantac and a multivitamin. Defendant also enrolled in a system that would notify her of Mae's immunization schedule. She also received a referral for in-home services for infant care.
In the meantime, defendant attended a substance abuse evaluation in April 2012 at the Division's request. She was referred to treatment.
Defendant brought Mae to her first pediatric check-up on June 1, 2012. Mae weighed 7.81 pounds, and was twenty-one inches long. She received a Hepatitis B vaccine. The report described Mae's growth as "normal." Her lungs were clear. Nonetheless, the report listed "current problems" as "drug withdrawal syndrome in newborn" and "disorders relating to extreme immaturity of infant 2500 grams and over." The "plan" section of the report stated, "Follow-up for examination — EPSDT in 1 month."
We presume "EPSDT" refers to the "Early and Periodic Screening, Diagnostic, and Treatment" program under Medicaid. Centers for Medicare & Medicaid Services, Early and Periodic Screening, Diagnostic, and Treatment, MEDICAID.GOV (2016), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Benefits/Early-and-Periodic-Screening-Diagnostic-and-Treatment.html.
Although a follow-up examination was planned for a month later, a staffer attempted to reach defendant by phone on June 7, 2012, to convey a physician's request that she visit sometime the week of June 11, 2012 "for a follow-up/ weight check." Defendant reportedly told the caller she did not have a car and wanted to make the appointment in two weeks. The staffer wrote in a report, "Mother [was] informed of importance and advised to come end of next week beginning of the following. Mother states she will contact us with availability." The next day, defendant called to speak to the physician about changing Mae's formula. Defendant denied that Mae was having any feeding issues. Defendant was told she would need to come in to see the physician with Mae and was offered an appointment that day, which defendant declined.
By June 22, 2012, defendant had not made arrangements to bring Mae in for the follow-up or weight check. A staffer from the medical practice tried reaching defendant, but was unable to leave a voice mail. The staffer reported sending a letter to "pt's home." A caller called defendant again on June 25, 2012; the caller was unable to reach her, but wrote that she left a message. The record does not establish that defendant received the letter or voicemails. Apparently, an appointment was made for Mae for July 5, 2012, though the record is unclear whether this was the one-month EPSDT re-examination or a weight check. The record is also unclear whether the defendant was informed of this appointment. The pediatrician's record indicated that defendant was a "no show."
In the meantime, Division workers completed an investigation into whether defendant had abused or neglected Mae as a result of her NAS. In mid-June 2012, the Division concluded:
Neglect unfounded at this time. Child was positive at birth for Benzodiaphines [sic]. However, mother was prescribed Lorazapn [sic] throughout her pregnancy by her treating doctor. Child's meconium was negative for substances. Mother did receive pre-natal care. Mother is engaged in services and family will continue to be monitored by the Division in ongoing unit.
Reports of defendant's care of Mae during June 2012 were generally positive; however, Division workers were apparently unaware that defendant had yet to make a weight check appointment. A home nurse from the hospital visited defendant's home on June 8 and told the Division that Mae was "very well cared for," according to the SPRU Report. The nurse also reported to the Division that
Mom appeared to be 'on the ball' with caring for the child. . . . There were no concerns for drugs or alcohol. Mom and child are bonding well and mom appears to be loving and delicate with the child. She is feeding appropriately and appears to be doing well in the home. [The caseworker] was informed that [the home nurse] will not be servicing this family from this point on as [they] do
not appear to be in need of in home nursing services.
Nonetheless, as part of its monitoring, Division workers saw indications that defendant was abusing her prescription medicine. Her psychiatrist had switched her from Lorazepam to Valium for her anxiety. She remained on Subutex. However, a check of defendant's pill bottles indicated that she was taking the medicine at a faster rate than prescribed. For example, in one day, defendant admitted taking six Valium and five Subutex pills. Yet the caseworker reported that defendant did not appear to be under the influence; she was coherent, and there were no signs that she was "nodding out" or that the medication had a negative effect. On June 13, 2012, defendant attended a substance abuse assessment, and was recommended for level 1 treatment.
Defendant was also asked to enter into a Safety Protection Plan (SPP), under which D.G. agreed to supervise defendant and Mae "24/7 while the Division is reass[essing] mother." The SPP also called for defendant to follow through with substance abuse treatment.
In July, Division workers reported conflicting impressions of defendant's care of Mae. According to a contact sheet that Plaisir created, Plaisir visited the home on July 20, 2012, and saw D.G. and Mae. Plaisir identified herself as the new caseworker. Plaisir was concerned about Mae's size, but apparently was assured by D.G. Plaisir wrote, "[Mae] appeared very small for her age. [D.G.] reported [Mae] is doing well and was just seen by her pediatrician two weeks ago. [D.G.] reported [Mae] sleeps through the night and eats about 3oz during one feeding." Plaisir confirmed that D.G. was willing to remain in the home to assist defendant as long as needed.
Five days later, a family team meeting was conducted at the defendant's brother's house. The contact sheet, prepared by a different caseworker, reported no concerns about Mae's size or feeding: "She appeared to be happy and healthy and appears well cared for. The child was observed to be able to hold her head up on her own and seemed to be content with her family. No concerns arise at this time for the care of this child."
By August, defendant's drug use had apparently worsened, notwithstanding that she continued to attend the vast majority of her drug treatment sessions. A "Substance Abuse Initiative," dated August 14, 2012, reported that in four weeks, defendant had four positive drug tests for "heroin/opiates" and "Benzodiazepine." The benzodiazepine result was apparently due to defendant's Valium prescription. However, the report stated defendant "has consist[e]ntly been testing positive for opiates/Oxycodone for which she has not provided a valid rx." Intensive outpatient treatment of fifteen hours a week was recommended.
The record does not inform us as to whether Subutex — an opiate blocker — would cause a positive test result for opiates or Oxycodone.
Plaisir remained concerned about Mae's size. On Friday August 17, Plaisir went to defendant's home to take Mae to the pediatrician. There is no evidence that between July 20 and this date, Plaisir communicated her concern directly to defendant. On August 17, defendant did not recognize any problem with Mae's growth. She told Plaisir that she was supplementing her formula with baby food, although she did so without confirming with a pediatrician that it was appropriate at Mae's age. Defendant also maintained that Mae consumed eight ounces of formula in each feeding.
Plaisir also maintained the child looked tiny, and was "grey" in appearance. However, the pediatrician reported that same day that the general appearance of Mae's skin was normal.
Once at the pediatrician on August 17, 2012, a nurse practitioner diagnosed Mae as failing to thrive, according to the medical records. She weighed 10.4 pounds, and was 22.5 inches. In the eleven weeks since her last visit, she had grown 1.5 inches, and gained 2.6 pounds. Mae had dropped from the tenth percentile in weight-for-age to the fourth percentile. She dropped more significantly in length-for-age, from about the fiftieth percentile to the tenth percentile. The pediatrician recommended a "new caloric increase formula." At the pediatric visit, Mae received her second Hepatitis B vaccine, as well as DTaP-HiB-IPV and pneumococcal conjugate vaccines.
According to Plaisir's supervisor, Aracelis Cepeda, "the doctor" was not sure if Mae's failure to thrive "was due to lack of food or something else." However, "mom had stated that she was giv[ing] the baby 8 oz of formula every 2 hours, but the baby's growth was not a match to what the mother was reporting feeding the baby."
Plaisir learned that defendant had failed to bring Mae for weight checks, doctor's visits or immunizations. Defendant contended she had not taken the child to the pediatrician because she lacked transportation. Defendant knew transportation was available through Medicaid, but insisted that the transportation was unreliable.
After the pediatrician's visit, the Division effected a removal of the child. Defendant responded angrily. In the course of collecting Mae's belongings, Plaisir discovered the original prescription of Zantac, which Mae received upon discharge from the hospital. Plaisir testified that it appeared none of the medicine had been used.
The Division filed its verified complaint for custody and proposed order to show cause on August 21, 2012. At the initial appearance, defendant's assigned counsel requested an adjournment because defendant stated she sought to retain private counsel with her brother's financial assistance. The court denied the request, stating the matter had to be heard that day. The court entered the Division's proposed order to show cause, finding that removal was required because Mae was failing to thrive and defendant's "account of what she was feeding [Mae] does not match the child's growth." The court also noted that defendant "admitted that she has a history of substance abuse." Defendant did not have private counsel on the return date of the order to show cause, or at the subsequent fact-finding hearing in December 2012.
As noted, Plaisir was the sole witness at the fact-finding hearing. Although she was not assigned to the case at the time, she reviewed events surrounding Mae's birth and the treatment of her NAS, and defendant's prescription drug use. She also recounted her involvement in taking Mae and defendant to the pediatrician on August 17. Without objection, Plaisir offered the opinion that Mae appeared much improved since her removal. "Big difference. Healthy, clear skin. She's cooing, she's playing, reaching for things. She's really doing well."
In some respects, Plaisir's testimony was at odds with the documentary record. She testified that "mom and child tested positive for opiates and benzo at the time of birth," although the only tests in the record reflected negative results for opiates. Plaisir asserted that Mae had received none of her immunizations, relying on the statement of a pediatric nurse, but the medical records reflect she received her first Hepatitis B vaccine at her visit on June 1. Plaisir misstated that Mae dropped from the fifty-fifth to fourteenth percentile in age-to-weight, when that percentile drop pertained to Mae's length. Plaisir also asserted that Mae's doctor asked that she come in every two weeks to monitor her weight. Yet the pediatric records reflect only a request for a weight check the week of June 11, and defendant's failure to comply.
Plaisir stated that Mae had a pediatric visit the previous week. She stated that the pediatrician had a concern that Mae has "low muscle tone" and needed to see a neurologist.
The court's decision relied heavily on Plaisir's testimony. Although the Division did not present any medical records from later than August 2012, the court found that Mae had been meeting "milestones" since her removal. The court held that defendant abused or neglected Mae. The court found medical neglect because Mae failed to thrive, defendant failed to recognize it, and she did not bring Mae to the doctor for immunizations and check-ups. The court also found abuse or neglect because defendant used drugs, causing Mae to test positive at birth and suffer withdrawal symptoms. The court stated:
Based upon all of the evidence going from the baby's birth up until August 17th of 2012 when the decision was made for an emergency removal, this Court finds that the Division has met their burden by a preponderance of the evidence in that [defendant] failed to recognize that baby [Mae] was failing to thrive, that she also did not bring her for any doctor's appointments with regard to immunizations or to check to see how she was doing. Taking that into consideration with the fact that the baby appeared to have withdrawal symptoms at the time of birth, all lead the Court to the conclusion that there was abuse and neglect committed by [defendant] under Title 9. Pursuant to Title 9:6-8.21(c), in that the defendant . . . used substances while pregnant causing the child to test positive at birth and suffer symptoms of withdrawal. In addition, the child was failure to thrive in the care of [defendant], and she failed to have her child properly immunized, thereby constituting medical neglect.
The court's fact-finding order stated: "Mother used substances while pregnant causing the child to test positive at birth and suffer symptoms of withdrawal. In addition, the child was failure to thrive in the care of [defendant]. Also, [defendant] failed to have her child, [Mae], properly immunized thereby constituting medical neglect."
II.
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 shall uphold the court's fact findings if supported by sufficient, substantial and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). We defer to a trial court's fact finding because the judge has had the opportunity to observe witnesses, weigh their credibility, and develop a "feel of the case." Id. at 293 (internal quotation marks and citation omitted). 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) (reversing "medical neglect" finding that lacked 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, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). The Division "must prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" P.W.R., supra, 205 N.J. at 32 (quoting N.J.S.A. 9:6-8.46(b)).
The statutory definition of an "abused or neglected child" consists of seven subparts. N.J.S.A. 9:6-8.21(c)(1)-(7). Although the court did not specify the statutory provision upon which it relied, we assume the court relied on subpart (4). In particular, in finding medical neglect, the court apparently relied on clause (a), which states that a child is abused or neglected if the child's
physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent . . . to exercise a minimum degree of care (a) in supplying the child with adequate . . . medical . . . care though financially able to do so or though offered financial or other reasonable means to do so . . . .The finding that defendant abused or neglected Mae by using drugs during pregnancy, causing Mae to test positive for drugs and to experience withdrawal symptoms, was evidently grounded in clause (b), which states that a child is abused or neglected if the child's
[N. J.S.A. 9:6-8.21(c)(4).]
physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent . . . to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court . . . .
[N. J.S.A. 9:6-8.21(c)(4).]
Courts need not wait for harm to occur, but the Division must present proof of "imminent danger or a substantial risk of harm to a child by a preponderance of the evidence." N.J. Dep't of Children & Families v. E.D.-O., 223 N.J. 166, 178 (2015) (emphasis in original). In other words, "evidence of actual impairment to the child will satisfy the statute, but in a case where there is no such proof, the critical focus is on evidence of imminent danger or substantial risk of harm." N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 22 (2013).
Also, "[t]o find abuse or neglect, the parent must 'fail . . . to exercise a minimum degree of care.'" E.D.-O., supra, 223 N.J. at 179 (quoting N.J.S.A. 9:6-8.21(c)(4)(b)). This requires "'conduct that is grossly negligent because it is willful or wanton . . . but not necessarily intentional.'" Ibid. (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999)). "Willful or wanton" conduct is "done with the knowledge that injury is likely to, or probably will, result." Ibid. (quoting G.S., supra, 157 N.J. at 178). It "implies that a person has acted with reckless disregard for the safety of others." Ibid. (quoting G.S., supra, 157 N.J. at 179). Therefore, a parent "'fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child.'" Ibid. (quoting G.S., supra, 157 N.J. at 181).
"Whether a parent . . . has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation." G.S., supra, 157 N.J. at 181-82; see also Dep't of Children & Families v. T.B., 207 N.J. 294, 309 (2011) ("The parent's conduct must be evaluated in context based on the risks posed by the situation."). The determination "is fact-sensitive and must be resolved on a case-by-case basis." E.D.-O., supra, 223 N.J. at 192. Courts undertaking this analysis "must avoid resort to categorical conclusions." Id. at 180 (citing T.B., supra, 207 N.J. at 309). "[T]he elements of proof are synergistically related. . . . One act may be 'substantial' or the sum of many acts may be 'substantial.'" Dep't of Children and Families v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010) (internal quotation marks and citation omitted), certif. denied, 207 N.J. 188 (2011).
In two cases involving prenatal drug abuse, our Court reversed findings of abuse or neglect because there was inadequate proof of imminent or actual harm to the child, or of parental fault.
In A.L., supra, a newborn tested positive for cocaine after delivery as a result of his mother's prenatal cocaine use. 213 N.J. at 9-10. The Court noted that the newborn did not experience any complications, and that the record established only the presence of cocaine metabolites in the newborn's meconium. Id. at 22, 27-28 (citing N.J.S.A. 9:6-8.21(c)(4)(b)). As examples of actual impairments that would satisfy the statute, the Court suggested "proof that a child is suffering from withdrawal symptoms at birth could establish actual harm." Id. at 22. Harm could also be shown by evidence of "respiratory distress, cardiovascular or central nervous system complications, low gestational age at birth, low birth weight, poor feeding patterns, weight loss through an extended hospital stay, lethargy, convulsions, or tremors." Id. at 22-23.
In the absence of proof of actual harm, the Division is required to prove imminent danger or substantial risk of harm. Id. at 23. The A.L. Court held that the presence of cocaine in the infant's system, "without more, does not establish proof of imminent danger or substantial risk of harm." Id. at 27-28. "Proof that a child's mother frequently used cocaine or other dangerous substances during pregnancy would be relevant." Id. at 23. However, "not every instance of drug use by a parent during pregnancy, standing alone, will substantiate a finding of abuse and neglect[.]" Ibid.
While expert testimony is not uniformly required in abuse or neglect cases, it is required where presence of drugs in the child's meconium is unaccompanied by other evidence of actual harm or imminent danger. Id. at 29. Thus, in New Jersey Division of Youth & Family Services v. N.D., 435 N.J. Super. 488, 497 (App. Div. 2014), we held that expert testimony was required to establish a causal connection between a mother's cocaine use and effects on the child's health. We noted that prenatal cocaine use generally does not cause the same noticeable withdrawal symptoms as does opiate use. Id. at 495-96.
Even where there is ample proof the newborn suffered drug-induced complications, a finding of abuse or neglect also requires proof of parental fault. In New Jersey Division of Child Protection & Permanency v. Y.N., 220 N.J. 165, 170 (2014), a mother's newborn suffered from NAS as the result of the mother's participation in a methadone program. The mother was taking Percocet, a prescription opioid, after a physical injury. Id. at 169. After learning she was pregnant, she followed the advice of a medical professional and entered a methadone program, which posed a lesser risk to the child than abruptly going off the Percocet. Id. at 169-70.
The Court held 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. The Court did not address whether a finding of abuse or neglect could be grounded on the parent's unjustified delay in seeking treatment, which might adversely affect the newborn's symptoms. Id. at 186.
In finding that there was insufficient evidence of abuse or neglect, the Court cautioned against "concentrating on harm without regard to parental fault." Id. at 183-84. The Court stressed that family judges must assess "whether [the parent] exercised a 'minimum degree of care' or 'unreasonably' inflicted harm on her newborn." Id. at 184 (quoting N.J.S.A. 9:6-8.21(c)(4)(b)). "Whether a parent exercised a minimum degree of care must be analyzed in light of the dangers and risks associated with the situation." Ibid. (internal quotation marks and citation omitted).
In cases of medical neglect, the Division must prove more than that a parent did not bring her child to a pediatrician on a regular basis. In P.W.R., supra, the trial court found medical neglect because a teenager had not seen a pediatrician for two years. 205 N.J. at 29. The Supreme Court reversed the finding of neglect, holding that evidence of missed appointments was insufficient, by itself, to establish that a child was impaired or in imminent danger of being impaired. Id. at 38. The Court noted that the child had seen Planned Parenthood for pregnancy tests during the time period in question. Ibid. Moreover, "DYFS never demonstrated proof of a physical condition, other than possible pregnancy, for which [the child] required pediatric care that was not sought." Ibid.
The trial court also found abuse and neglect because the mother slapped the child, and the father did not intervene; the home did not have adequate heating; the parents used the teenager's earnings; and they isolated the child from her grandfather. P.W.R., supra, 205 N.J. at 29. --------
We also declined to find medical neglect where a grandparent refused to send a child in her custody for a mental health evaluation. N.J. Div. of Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 146-47 (App. Div. 2014). The child expressed suicidal ideation; however, the grandparent insisted that the child was being manipulative. Id. at 146. We approved the Division's decision to remove the child for an evaluation, but concluded "the record lack[ed] substantial credible evidence that [the grandparent's] conduct amounted to medical neglect or recklessly created a substantial risk to the child's mental health or physical safety." Id. at 146-47. We emphasized the lack of expert testimony or admissible documentary evidence to support the trial court's conclusion that the child was in danger. Id. at 155-57. We also pointed to the grandparent's dedication and commitment to the rearing of the child. Id. at 156.
We recognize that many cases are idiosyncratic, and parental behaviors that fall short of abuse or neglect in one context may justify a finding of abuse or neglect in another. See P.W.R., supra, 205 N.J. at 33. The foregoing cases demonstrate that prenatal drug use or the failure to bring a child to scheduled pediatric appointments does not automatically constitute abuse or neglect. While such decisions may not be "exemplars of stellar parenting," our cases recognize they do not always result in imminent danger or substantial risk of harm to the child. See id. at 21.
III.
A.
Beginning with the finding of abuse or neglect based on defendant's prenatal use of drugs, we do not question the court's finding that her drug use caused Mae's withdrawal symptoms. We recognize that the Division did not present expert evidence that NAS was caused by defendant's use of Lorazepam, a benzodiazepine prescribed for her anxiety, or Subutex, which was prescribed for her opiate addiction. Mae's urine test was positive for benzodiazepine, even if her meconium test was not. Expert testimony is not required where, as here, there is evidence of actual harm. A.L., supra, 213 N.J. at 29. Mae experienced withdrawal symptoms and respiratory distress, which establish actual harm. Id. at 22-23.
The only drug in Mae's system, however, was benzodiazepine, which was prescribed by defendant's treating psychiatrist. We recognize that the medicine was not prescribed to combat a prenatal drug addiction, as was the methadone in Y.N. The Subutex was prescribed for defendant's opiate addiction; yet there is no evidence that Subutex was found in Mae's system. Defendant's psychiatrist prescribed Lorazepam — the benzodiazepine — to replace the Xanax that defendant reported using. The psychiatrist stated he did so in consultation with defendant's obstetrician-gynecologist (although the Division was unable to confirm that). Based on the principles in Y.N., supra, we cannot conclude that use of the benzodiazepine, according to a valid prescription, constituted a failure to exercise a minimum degree of care.
On the other hand, if defendant overused benzodiazepine, that would pose a different issue. Defendant's physician stated he prescribed a low dose of Lorazepam to balance defendant's need for an anti-anxiety medicine and the need to protect the child. There was record evidence that defendant took more than the prescribed amount. On April 9, 2012, defendant received a ninety-pill bottle of Lorazepam, of which she was instructed to take three pills a day. While this prescription should have lasted for thirty days, the bottle was empty on April 24, 2012. Although defendant claimed her friend had emptied the bottle and placed the pills elsewhere, defendant was never able to produce the pills.
If defendant did take more than the prescribed amount, a court conceivably could find a failure to exercise a minimum degree of care. To establish abuse or neglect, however, the Division must present expert testimony showing that the excessive use actually caused harm to Mae (e.g. by exacerbating her symptoms), or posed an imminent danger or significant risk of harm.
The trial court did not address these issues. We recognize that Y.N. was decided after the trial court's decision. Under these circumstances, we remand with direction to reopen the hearing to allow all parties to present additional evidence, including medical and/or expert testimony, consistent with Y.N. See N.D., supra, 435 N.J. Super. at 497-98 (remanding for a reopened hearing in light of A.L., supra, 213 N.J. at 29).
B.
We consider next the court's finding that defendant medically neglected Mae. This was based on three conclusions: (1) Mae failed to thrive in defendant's care; (2) defendant did not detect the failure to thrive; and (3) defendant failed to bring Mae in for immunizations and check-ups. We are convinced that the first two facts do not establish abuse or neglect. The third finding is a closer question.
There is no dispute that Mae's length-for-age and weight-for-age rankings dropped between her June 1 and August 17, 2012 pediatric visits — the former more significantly than the latter. Although defendant perceived no problem with Mae's development, there is no record evidence that defendant's failure to "exercise a minimum degree of care" caused the slow growth. The record shows that despite her drug use, defendant acted appropriately with the child. The in-home nurse decided further visits were unnecessary because defendant demonstrated skill in caring for the child. Although Plaisir opined that defendant began feeding baby food prematurely, there was no expert evidence that this contributed to Mae's slow growth.
There was also evidence that defendant failed to administer the Zantac that was prescribed upon discharge. However, competent evidence was also lacking as to whether this had any effect. It is noteworthy that the record of the child's first pediatric visit reported "no known current medications." Thus, it is unclear whether the pediatrician post-discharge continued to direct use of Zantac.
We also conclude defendant's inability to recognize a failure to thrive does not support a finding of abuse or neglect. Although Mae's percentile rankings fell, she continued to grow, both in terms of weight and length. Although Plaisir believed Mae looked small during her visit on July 20, 2012, a fellow caseworker wrote five days later, after a family team meeting, that the baby looked "happy and healthy and . . . well cared for." The pediatrician's record of the August 17 visit does not report any physical symptoms that an inexperienced mother could be expected to associate with a problem.
Thus, the record does not show that Mae's failure to thrive was associated with any obvious symptoms. Accordingly, defendant did not fail to exercise a minimum degree of care merely by not recognizing that Mae's weight and length relative to other newborns was decreasing.
This brings us to defendant's failure to take Mae to the pediatrician after the June 1 visit. Based on the trial record, her failure was irresponsible. The June 1 pediatrician's report indicates a plan for a reexamination in a month. Even before the one-month mark, pediatric staff notified defendant that Mae should be seen for a follow-up and weighing. Staff attempted to remind her by phone and letter. Defendant stated she would come in, but did not. Defendant also failed to show for a July 5 appointment. Defendant made no efforts to bring the child to the pediatrician thereafter. Had Plaisir not taken the initiative, it is unclear when Mae would have next seen the pediatrician.
Given the circumstances, we cannot disturb a finding that this amounted to a failure to exercise a minimum degree of care. Defendant was aware that her daughter had battled significant complications after birth. Mae had to be administered powerful medicine, about which defendant had reservations. Although defendant may have been lulled into complacency by the initial positive reports she received, the pediatrician's staff made it clear that a follow-up and weigh in was needed. While defendant claimed she lacked transportation, this is not a valid excuse. Defendant had the capacity to travel, as she attended most of her substance abuse treatment meetings. Furthermore, Medicaid provides medical taxi service. Defendant was aware of the dangers inherent in the situation and failed adequately to meet Mae's medical needs. E.D.-O., supra, 223 N.J. at 179.
However, to prove abuse or neglect, the Division was required to establish that defendant's failure to bring Mae to the pediatrician impaired Mae's physical, mental or emotional condition, or placed Mae in imminent danger of being impaired. As the Court held in P.W.R., supra, the mere failure to attend regular pediatric visits is not abuse or neglect. 205 N.J. at 38. The Court indicated that abuse or neglect may be established upon "proof of a physical condition . . . for which [the child] required pediatric care that was not sought." Ibid.
We presume that not every physical condition would suffice. For example, we doubt that a parent may be found to have abused or neglected a child if he or she brought the child to a dentist several months beyond the regular six-month interval, only to discover a minor cavity that required treatment. The seriousness of the physical condition must be taken into consideration. Thus, in S.I., supra, we reversed a finding of medical neglect in part because of the absence of proof of the level of risk the child posed to herself. 437 N.J. Super. at 155.
We recognize that defendant's delay in bringing Mae to the pediatrician likely delayed the diagnosis and treatment of the failure to thrive. Nonetheless, there was no expert evidence regarding the nature of Mae's diagnosis of "failure to thrive." Nor was there competent evidence regarding the range of effects of failure to thrive. Notably, Mae was not hospitalized, prescribed any new medications, or administered any diagnostic tests. We cannot conclude on this record that Mae suffered a significant harm, or faced imminent danger or a significant risk of harm.
The trial court also rested its finding of medical neglect on defendant's delay in securing Mae's immunizations. The court did not acknowledge that Mae received an immunization in June. It may well be that the timing of Mae's immunizations did pose an imminent danger or significant risk. However, there was no expert evidence on the subject.
We recognize that a judge may well have personal knowledge of the standard recommendations for an infant's regular check-ups and immunizations, and a sense of the risks if those recommendations are not followed. However, "[j]udges . . . cannot fill in missing information on their own or take judicial notice of harm." A.L., supra, 213 N.J. at 28. It is the Division's burden to present essential "particularized evidence." Ibid. In this case, the documentary record upon which the Division primarily relies, does not suffice.
We consequently reverse the finding of medical neglect. As with the finding of abuse or neglect based on defendant's prenatal drug use, we remand for a reopened hearing at which the parties may introduce additional proofs, including expert testimony.
Given our disposition, we need not address defendant's remaining points on appeal. However, we note that in her argument regarding ineffective assistance of counsel, defendant requested a remand and reopened hearing.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION