New Jersey Division of Child Protection & Permanency v. K.M., 444 N.J. Super. 325 (App. Div. 2016). This is another child abuse and neglect appeal, but one that contains an unusual twist on a woman’s use of drugs during pregnancy. Defendant K.M. gave birth to a child, G.G., who, during the first three days after his birth, showed signs of physical distress from withdrawal from opioid addiction. K.M. had been addicted to oxycodone, an opioid, before her pregnancy, and while she was pregnant she took suboxone, a drug used to treat the physical symptoms of opioid withdrawal. K.M. did not get a prescription for the suboxone, however. Instead, she self-medicated, taking the suboxone from a friend who had been prescribed the drug for a knee injury.
K.M. did not tell the hospital staff at first about her addiction to oxycodone or about having taken suboxone. Once she did disclose that, the hospital staff began to treat G.G. with morphine, and after 22 days of neonatal intensive care treatment, he recovered and was released to his parents. But the baby had suffered for those first three days because K.M. did not immediately disclose her situation to the hospital staff.
The Division of Child Permanency and Protection (“the Division”) brought charges of abuse and neglect against K.M. The Family Part found for the Division, on the grounds that K.M. had wrongfully taken suboxone during the pregnancy without going to a doctor and despite the illegality of taking that drug. K.M. appealed. Today, the Appellate Division affirmed, but on different grounds, in an opinion by Judge Fuentes.
K.M.’s primary point on appeal was that there was no evidence of any actual physical, mental, or emotional harm (required for a finding of abuse or neglect) to G.G. as a result of K.M.’s having taken suboxone during her pregnancy. Judge Fuentes agreed. “However, the question is not whether defendant ingested Suboxone during her pregnancy or even that she did so clandestinely,without disclosing it to her obstetrician. Defendant caused harm to G.G. when she waited three days after delivering G.G. to disclose to the neonatal staff that she had taken Suboxone. Her failure to act in a more timely manner caused her infant son three days of needless suffering.”
Though the panel recognized “a mother’s physical and emotional distress after childbirth,” it was “grossly negligent” of her not to promptly disclose the fact of her suboxone use so as to avoid endangering the health of G.G. Judge Fuentes distinguished the Supreme Court’s decision in New Jersey Division of Child Protection & Permanency v. Y.N., 220 N.J. 165 (2014), which reversed a finding of abuse where a mother had, while pregnant, entered into a methadone maintenance program as prescribed by a medical professional. K.M.’s “decision to illicitly obtain Suboxone and thereafter ingest the medication to treat her withdrawal symptoms without consulting a physician do not bear any resemblance to the prudent, medically sound course of action employed by the defendant in Y.N.”
Judge Fuentes observed that the panel’s reasoning differed from that of the Family Part judge, who had ruled based on K.M.’s “conduct during her pregnancy.” But, as he rightly noted, “an appeal is taken from a trial court’s ruling rather than reasons for the ruling,” and the Appellate Division was free to affirm on grounds other than those cited by the Family Part.