Pregnancy Justice – Victory for Pregnant Women and Children in NJ

In a major victory for New Jersey's pregnant women and families, the state's Supreme Court announced a unanimous opinion in New Jersey Division of Youth & Family Services v. A.L. recognizing that 1) the state's child protection laws do not give the Division of Child Protection and Permanency (formerly the Division of Youth and Family Services) jurisdiction or control over pregnant women, and 2) that positive drug tests on pregnant women and newborns do not alone establish neglect. The court also acknowledged the concerns of leading medical and public health organizations that application of child protection laws to the context of pregnancy can undermine maternal, fetal, and child health and would be likely to disproportionately harm "low income and minority communities."

In this case, a mother, identified in court records as "A.L.," gave birth to a healthy baby in September of 2007. The New Jersey Division of Child Protection and Permanency argued that positive drug screens for cocaine on A.L. and her newborn were sufficient evidence of harm or imminent harm to find that A.L. had neglected her child. A lower court and the Appellate Division agreed, not only finding neglect in this case, but also declaring that New Jersey's neglect law could be applied to the context of pregnancy. Yesterday the New Jersey Supreme Court rejected these claims.

On appeal to the New Jersey Supreme Court, Pregnancy Justice, along with Lawrence Lustberg, Esq. of Gibbons, PC, represented 50 national and international medical, public health, and child welfare organizations, experts, and advocates as amicus. Amici included the American College of Obstetricians and Gynecologists, the Addiction Science Research and Education Center, and the American Academy of Addiction Psychiatry. (A full list of the amici is available here). Amici in this case argued that the lower courts relied on popular misconceptions about drugs, pregnant women, and child welfare that lack any foundation in evidence-based, peer-reviewed research.

After hearing oral argument on September 10, 2012, the New Jersey Supreme Court carefully considered the expert amicus brief and rejected the State's reliance on scientifically discredited, factually incorrect statements about drug use in pregnancy. The court recognized, in effect, that drug tests cannot predict parenting ability. This decision also recognizes that pregnant women, children, and families should not be deprived of their fundamental rights - including the right to family relationships - based on presumptions that are medically baseless.

Expert amici explained to the court that medical research makes clear that numerous substances, conditions, and circumstances raise similar or greater risks to fetuses than prenatal exposure to cocaine. While amici were careful to note that they were not suggesting that prenatal exposure to criminalized drugs is benign, they emphasized that current scientific evidence simply does not support a per se finding of abuse or neglect based solely on drug tests indicating that a pregnant woman used cocaine or any other criminalized or non-criminalized drug during pregnancy.

The court agreed, stating: "On its own, the one entry [a medical notation of a positive drug test] does not tell us whether the mother is an addict or used an illegal substance on a single occasion. The notation does not reveal the severity or extent of the mother's substance abuse or, most important in light of the statute, the degree of future harm posed to the child. In other words, a [positive drug test], without more, does not establish proof of imminent danger or substantial risk of harm."

Relying heavily upon information provided in Pregnancy Justice's amicus brief, the court emphasized the "the fact-sensitive nature of abuse and neglect cases," and noted that "[j]udges at the trial and appellate level cannot fill in missing information on their own or take judicial notice of harm." Instead the Division must prove its case using qualified scientific and medical evidence.

The Court concluded that the Division of Child Protection and Permanency may provide services to pregnant women who seek them, subject to "an important limitation: a pregnant woman or mother must consent to the Division providing services."

Significantly, last year, a New Jersey trial court, anticipating this decision, refused to assume that symptoms of Neonatal Abstinence Syndrome in an infant born to a pregnant woman who had followed medical advice and obtained methadone treatment constituted "harm" for purposes of New Jersey's child welfare law. In this case, the mother was represented by counsel from Pregnancy Justice and the New Jersey Office of Parental Representation. The court considered testimony from two internationally renowned experts in methadone treatment and pregnant women and concluded that the newborn's symptoms were not "harm" as contemplated by the law, but rather the anticipated, treatable side effects of federally recommended, Constitutionally-protected drug treatment. The court noted that the question of whether Neonatal Abstinence Syndrome is harmful as contemplated by Title 9 (the state's civil child abuse and neglect statute) is "a subject that contemplates expert testimony."

Pregnancy Justice is very proud of these significant victories. They will not, however, end efforts to use civil child welfare laws as mechanisms for controlling and punishing pregnant women, or stop child welfare departments from confusing evidence of drug use with child abuse. See for example, this recent Daily News story: WEED OUT: More than a dozen [New York] city maternity wards regularly test new moms for marijuana and other drugs. We will need your continued support to ensure that the New Jersey ruling is followed in that state and recognized as correct in all of our other 49 states!