A Court Cannot Find “Abuse” or “Neglect” of Child Where Mother Used Drugs During Pregnancy But No Harm Resulted to the Child

Division of Youth & Family Servs. v. A.L., 213 N.J. 1 (2013).  When A.L. was admitted to the hospital to give birth to her son, A.D., she tested positive for cocaine.  The hospital tested A.D.’s urine two hours after his birth, and the urine showed no traces of cocaine.  Thereafter, however, the baby’s first stool tested positive for cocaine metabolites.  The baby’s health was otherwise normal.  The hospital reported the positive drug screen to DYFS (now known as the New Jersey Division of Child Protection and Permanency).  DYFS began an investigation, including interviewing A.L.’s other child, T.L., and other family members.  DYFS learned that A.L. had tested positive for marijuana in the fifth month of her pregnancy. 

DYFS filed a verified complaint for care and supervision of both A.D. and T.L., and sought a finding of abuse or neglect against A.L. under N.J.S.A. Title 9.  DYFS’s case was based entirely on the evidence of A.L.’s drug use and the potential for harm to A.D., since DYFS conceded that there was no evidence of actual harm to A.D.  Both the trial judge and the Appellate Division found abuse and neglect.  The Supreme Court granted certification and reversed in a unanimous opinion by Chief Justice Rabner.

The Court focused on the language of the relevant provisions of Title 9.  First, the Court observed that the statue applies to a child, not a fetus.  Unlike other enactments that used the term “unborn child,” the definitions of “child” and “abused or neglected child” were limited to “any person under 18 years of age.”  The Legislature presumably knew how to include an unborn child in statutory coverage when it wished to do so, so the Court was bound by the Legislature’s plain language and its decision not to include an unborn child here.  Chief Justice Rabner cited other cases in which New Jersey appellate courts, and courts in other jurisdictions, had declined to apply statutes to unborn children absent express statutory language that included them.

Thus, A.L.’s conduct while pregnant could be relevant only if it related to the suffering or imminent risk of harm to the child after birth.  That was because Title 9 looked at whether A. D., “as a newborn,’ had been impaired’ or was in ‘imminent danger of becoming impaired’ as a result of his mother’s failure to exercise a minimum degree of care by unreasonably inflicting harm or allowing a ‘substantial risk’ of harm to be inflicted,  See N.J.S.A. 9:6-8.21(c)(4)(b).”  

Proof of a mother’s drug use during pregnancy could be relevant to substantial or imminetly threatened harm to her child.  But the past use of drugs, standing alone (or, here, together with the test of the baby’s first stool) does not necessarily show abuse or neglect.  Because A.L.’s baby was born healthy, and DYFS conceded that it had no evidence of harm that either had already occurred or could imminently occur to the child, the finding of abuse and neglect was reversed.