Pubdate: Thu, 07 Feb 2013
Source: Philadelphia Inquirer, The (PA)
Copyright: 2013 Philadelphia Newspapers Inc
Contact:  http://www.philly.com/inquirer/
Details: http://www.mapinc.org/media/340
Author: Barbara Boyer

COURT: DRUG TEST DOES NOT PROVE ABUSE

Ruling for a Mother Whose Infant Tested Positive for Cocaine, It Said 
the Evidence Was Insufficient.

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."
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MAP posted-by: Jay Bergstrom