March 01, 2013

Cocaine Exposure with No Evidence of Harm Did Not Support Dependency Finding

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re T.L., 2013 WL 440229 (N.J.).

Where child was found at birth to have been exposed to cocaine, but there was no medical evidence of distress or impairment, and no evidence that mother was a substance abuser, trial court was incorrect in taking dependency jurisdiction. Dependency requires harm, imminent danger, or serious risk of harm.

At her son’s birth, the mother tested positive for cocaine and her son’s first stool was found to have cocaine metabolites. The hospital notified the agency and they began an investigation. The investigation revealed the infant’s health was otherwise normal and he was discharged from the hospital after two days. They also interviewed the mother’s five-year-old son and identified no evidence of abuse or neglect of that child.

The agency filed an abuse/neglect petition. The evidence presented was largely the medical records. The mother denied using cocaine, stating that she may have inhaled some when she tried to grab a bag from a friend in her car to dispose of it and the bag broke. The trial court found her explanation not credible. The agency conceded at the trial that there was no evidence of actual harm resulting from the drug exposure but argued the drug use placed the child at serious risk.

The trial court found the child was at risk of abuse or neglect and placed the child in the care of the agency with supervised visitation with the mother.

The mother appealed the dependency adjudication to the Appellate Division, which affirmed the trial court’s decision. The mother appealed to the New Jersey Supreme Court.

The New Jersey Supreme Court discussed first whether the language of the abuse and neglect statute, which was written in terms of harm to a “child less than 18 years of age,” applied to a fetus. Several textual citations pointed to it not being applicable to a fetus. First, an agency regulation defines a child as “a person from birth to his or her 18th birthday.”

Second, the state legislature explicitly covered “unborn child[ren]” in another statue and could have done so in the abuse and neglect section if they had intended it to apply.

For these and other reasons the New Jersey Supreme Court concluded the law’s protection was limited to the physical, mental, or emotional condition of a child after birth. Harm to a child from in utero drug exposure could be shown in various ways, such as if the child was suffering from withdrawal or other medical conditions associated with drug exposure. None of these conditions were present in the case.

Since there was no evidence of actual harm to the child after birth, the agency had the burden to show an imminent danger or a substantial risk of harm from the mother’s actions.
The agency merely presented information that the child had been exposed to cocaine. It did not show that the mother was a substance abuser, or that she even used cocaine more than once. Such information would allow the court to determine whether there was a future safety risk.

The court discussed how expert testimony could be useful in these cases and alternatively how the court could rely on generally accepted scientific evidence. However, it found these issues were not tried at the trial level, and since the child had been returned home, they did not need to be resolved on appeal.

Based on the above, the New Jersey Supreme Court reversed the Appellate Division decision affirming the trial court’s dependency finding.