Justices Say Methadone Treatment While Pregnant Not Child Abuse
Mary Pat Gallagher, New Jersey Law Journal
Going through methadone treatment while pregnant does not constitute child abuse or neglect even if the baby suffers from drug withdrawal symptoms, the New Jersey Supreme Court ruled Dec. 22.
“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 health-care professional to whom she has made full disclosure,” Justice Barry Albin wrote for a unanimous court in N.J. Division of Child Protection & Permanency v. Y.N.
The justices disagreed with lower courts that found abuse and neglect on the part of the mother, identified as Y.N.
The high court rejected the Appellate Division’s strict liability approach, which looked at the harm to the child without considering the reasonableness of Y.N.’s conduct, seeing it as inconsistent with the statutory requirement that abuse or neglect be the product of gross negligence, recklessness or willful and wanton conduct.
“Sometimes a parent may cause injury to a child to protect that child from a greater harm,” wrote Albin. “Under those circumstances, the parent may be acting reasonably.”
The case drew national and state amici who argued that, not only does methadone treatment not meet the gross negligence/recklessness standard, but treating it as abuse or neglect would deter pregnant women from seeking help with addiction and interfere with a woman’s constitutional right to autonomy.
In addition, Y.N. should not be punished for entering methadone treatment when her Percocet addiction predated her pregnancy and the treatment lessened the risk to her child, they contended.
Y.N. learned she was pregnant in September 2010 when she sought medical care after hurting her hand in a fall, according to Albin’s opinion. At that point she had been taking Percocet for months due to pain from a car accident and had become dependent on it.
She was advised that stopping the drug abruptly could cause withdrawal symptoms that might trigger a miscarriage and it was recommended that she seek prenatal care and enter a methadone maintenance treatment program, the opinion said. She started the prenatal care soon after but it took a while to locate a detoxification clinic. By the time she started treatment, she was eight months pregnant.
On Feb. 18, 2011, she gave birth to a son whose withdrawal symptoms—tremors, fever, and trouble sleeping—led to a diagnosis of neonatal abstinence syndrome, according to the opinion. He was sent to the neonatal intensive care unit where he was given morphine and not allowed to go home until early April.
The Division of Child Protection and Permanency (DCPP), then known as the Division of Youth and Family Services, or DYFS, got involved after an incident in which police had to remove the baby’s father from the hospital, according to the opinion. The police contacted DYFS, and the father told the agency he had seen Y.N. high on drugs.
On her next treatment visit, she was asked for a random urine sample, which she did not provide because her waiting prepaid taxi was honking its horn, the opinion said. It was treated as a refusal, and deemed the equivalent of testing positive, leading DYFS to file a complaint against her.
DYFS alleged abuse and neglect based on Y.N.’s prior drug history, her refusal to take the drug test, the baby’s withdrawal, and the domestic violence with the father, for which she obtained a temporary restraining order at one point.
In 2011, Essex County Superior Court Judge Stephen Bernstein allowed Y.N. to keep the baby but placed him under DYFS supervision, stating that when a child is born exposed to illicit drugs, “we routinely say that’s abuse and neglect.”
The Appellate Division affirmed, but only on the basis of the methadone withdrawal. It found “actual impairment” of the baby and said where that exists, it is “immaterial whether the drugs taken were from a legal or illicit source.”
That distinction, however, mattered to the Supreme Court, which pointed out that prior case law, where harm alone was sufficient, involved use of illegal drugs rather than medically supervised treatment.
“In our view, the Appellate Division went astray by concentrating on harm without regard to parental fault,” Albin said, adding that its reasoning “creates a perverse disincentive for a pregnant woman to seek medical help and enter a bona fide detoxification treatment program that will address her and her baby’s health needs.”
He added that in “weighing the relative harms facing the child, the greater potential harm is if the mother does not secure proper prenatal care, including treatment for her drug dependency.”
The court reversed but remanded for a decision on whether alternative grounds existed to find abuse or neglect, such as the domestic violence or Y.N.’s four-month delay in beginning treatment.
Y.N.’s attorney, Glen Rock, N.J., solo Clara Licata, said that her client took methadone to avoid the greater harm of her child being born addicted to Percocet or possibly not even surviving the pregnancy. The reversal means she need not remain on the child abuse registry, which would affect her ability to work at certain jobs and to adopt, as well as her reputation.
Licata thought the ruling could potentially have an impact beyond its facts, in other situations where pregnant woman undergo medical treatment.
Seventy-six organizations and experts in maternal, fetal and child health, addiction treatment, and health advocacy, all represented by Lawrence Lustberg of Gibbons in Newark, were granted amicus status.
Lynn Paltrow, executive director of one of those groups, National Advocates for Pregnant Woman, based in New York, said the court recognized that methadone treatment for pregnant women is “health care not harm,” adding that the recognition of its value could help women in other contexts where it can be an issue, including criminal cases.
Mary McManus-Smith, of Legal Services of New Jersey, also an amicus, commented that the ruling “incorporates current scientific understanding of medical treatment for addiction” and “will encourage treatment by women who are addicted and pregnant.”
The American Civil Liberties Union of New Jersey, another amicus, represented by Acting Rutgers-Newark Law School Dean Ronald Chen, released a statement on the decision. ACLU Legal Director Edward Barocas said it “underscores that the state should not be in the business of second-guessing medical decisions made by a woman and her doctor,” and penalizing pregnant women for seeking health care is “not only unconstitutional, but counterproductive.”
The Office of the Public Defender wore two hats in the case.
Assistant Public Defender Janice Anderson, who heads the Office of Parental Representation, which hired Licata for Y.N., welcomed the clarification from the state’s highest court regarding “a mother that has had a drug history but is doing everything that she can to protect the child under the circumstances,” saying it is a recurring scenario.
Lorraine Augostini, Anderson’s Office of Law Guardian counterpart, which represented the baby, said she agreed the statute is not a strict liability one.
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