N.J. high court: Drug test does not prove mother abused infant

Posted: February 07, 2013

Child protection workers did not prove that a Cape May County mother abused her infant even though the child tested positive for cocaine at birth, the New Jersey Supreme Court ruled in a unanimous decision Wednesday.

The decision overturned two lower-court decisions in the 2007 case. Drug tests alone do not substantiate abuse and protection workers must show actual or imminent harm, the justices wrote.

The court also found that state child welfare laws do not apply to a fetus.

"It's a very important case, and we're pleased with the decision," said Newark lawyer Lawrence Lustberg. He filed an appeal on behalf of women's rights groups that say pregnant women and mothers might not seek prenatal care and medical services if drug screening would lead to allegations of abuse or neglect.

A spokeswoman for the New Jersey Department of Children and Families said the agency had no comment.

In 2007, the department investigated the Cape May mother, identified in court records as "A.L.," after hospital workers reported that she and her infant boy tested positive for cocaine. She also tested positive for marijuana during pregnancy.

The medical records do not reveal "whether the mother is an addict or used an illegal substance on a single occasion," the decision said. The medical records did not show harm or risk.

"In other words, a report noting the presence of cocaine . . . without more, does not establish proof of imminent danger or substantial risk of harm," it said.

The mother said she ingested cocaine two days before she gave birth when a friend spilled the drug on her. She said she tested positive for marijuana after inhaling secondhand smoke during a job-related pharmacy delivery to a cancer patient who smoked medical marijuana.

The high court cited medical records reviewed by the state that included the drug screenings, and showed that the baby was not addicted and was discharged from the hospital two days after birth.

State child-protection workers, however, found that the screenings proved abuse and neglect, and required supervision of the mother and her child by the infant's maternal grandmother.

The mother said she never put her child at risk and contested the finding.

The lower court decided that the mother's "prenatal drug use," when corroborated by the infant's drug screenings, was sufficient to show the child was an abused or neglected child under state child welfare laws. An appellate court agreed.

The Supreme Court said that when evidence does not show actual or imminent harm, such as symptoms of withdrawal or medical abnormalities, expert testimony may be helpful. It also noted that protection laws address drug use during pregnancy. State workers may offer treatment with the mother's consent, or seek a court order for treatment.

Lynn Paltrow, executive director of National Advocates for Pregnant Women, one of the parties to the appeal to the high court, said Wednesday's decision was important for children: "The . . . court today recognized 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.

"The court's decision protects the rights of all pregnant women and in so doing actually protects maternal, fetal, and child health."

Contact Barbara Boyer at 856-779-3838, bboyer@phillynews.com, or follow on Twitter @BBBoyer.

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