Probing the Limits of Abuse and Endangerment

Last fall, I had the pleasure of attending a very interesting seminar organized by the NYS Defenders Association in Poughkeepsie, NY. In perhaps the most memorable case, Emma Ketteringham, Managing Attorney of the Family Defense Practice of the Bronx Defenders, outlined the complexities of child custody cases involving an expectant mother who used drugs, and I would like to bring the details of one such case to your attention.

Much of Ketteringham’s discussion centered on a 2013 New Jersey Supreme Court (N.J.S.C.) decision written by Chief Justice Stuart Rabner (N.J. Div. of Youth and Family Servs. v. A.L. (A-28-11)(068542)). This particular case dealt with the extent of an expectant mother’s “abuse” or “neglect” of her child if she uses drugs during pregnancy but otherwise causes no actual harm when the baby is born.

In this case, the respondent mother tested positive for marijuana in her fifth month of pregnancy and upon admission to the hospital, tested positive for cocaine. Although the infant’s urine was negative for cocaine two hours after birth, his meconium later that day revealed the presence of cocaine metabolites. The New Jersey Division for Child Protection and Permanency (N.J.D.C.P.P.) determined that the allegation of neglect was substantiated and filed a complaint for abuse and neglect against the mother. Although documents were submitted into evidence, no testimony apparently took place. Both the lower court and the Appellate Division declared that abuse and neglect had occurred, creating a serious risk of harm to the child.

The N.J.S.C. however unanimously held that the petitioner agency’s case did not show actual harm or imminent danger or a substantial risk of harm to the child after birth, as state law requires. Additionally, the court found that the law (N.J.S.A. Title 9) applied to a child and not a fetus. Since there was no evidence of physical or mental abnormalities, the infant was not in any actual harm by the mother’s actions. Furthermore, the evidence presented in court as to the mother’s drug use did not establish a degree of future harm posed to the child.

This case raises some interesting questions. Perhaps if the petitioner had presented proof that the child was suffering from withdrawal or other abnormalities it could have shown actual harm to the newborn. In my opinion, a finding was warranted with an Order of Supervision including a requirement of a drug evaluation and follow through with any recommendations.

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