Jurisdictions like Alabama and Tennessee may be looking for ways to expand criminal liability of pregnant women as a means of pushing fetal “personhood,” but New Jersey is taking a different approach. In a recent, unanimous ruling, the New Jersey Supreme Court held that the state may not find a newborn to be abused or neglected solely on evidence of prenatal drug exposure without evidence of actual harm to the child.
In New Jersey Division of Youth and Family Services, v. A.L. a lower court determined that a newborn had been abused or neglected after tests of a stool sample taken shortly after the baby’s birth showed traces of cocaine metabolites. Hospital workers tested the baby after the mother tested positive for cocaine when admitted to the hospital in labor. After the baby tested positive a hospital employee called the state’s child protection agency to report the test results. When interviewed regarding the test results the mother denied using drugs during pregnancy and blamed the results on accidental exposure, claiming a friend had spilled cocaine on her. Initial urine tests done on the baby two hours after birth came back negative for drug exposure, and all of its other testing and scoring showed the baby in excellent health. According to reports, the case worker assigned to investigate the allegations of abuse reported the baby to be physically well-cared for at home with no evidence of additional drug exposure.
But despite those findings a month later the agency filed a compliant for “care and supervision” of the baby and the mother’s five-year-old based on the hospital drug test. The trial court granted the agency’s request and removed the children from her direct care, allowing the mother only supervised contact with them and ordering her to submit to substance abuse evaluation and random drug testing. After six months all restrictions on the mother’s contact with the children were lifted but the agency still moved forward for a finding of abuse and neglect.
Under New Jersey law, the child protection agency must show a child’s “physical, mental, or emotional condition has been impaired” or is in “imminent danger of becoming impaired” as a result of a parent’s failure to exercise a “minimum degree of care…by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof.” According to reports, at the hearing, the agency offered no witnesses to support its allegations of abuse in-utero. Instead, it introduced several documents to show that both mother and baby had tested positive for cocaine and that the father had conceded that they were a family in “need of services.” The agency, the court noted, made no allegations and presented no evidence against the mother relating to her behavior during the nearly seven months after the child’s birth and while the family was supervised. Instead, the hearing focused on only one aspect of her parenting—the in-utero transmission of cocaine, as evidenced by the test results.
On appeal, the New Jersey Supreme Court reversed the finding of abuse and neglect, holding that without evidence of actual harm to the infant from the in-utero exposure to cocaine, the agency had to offer additional evidence to support a finding of abuse and neglect. The court’s ruling rested on a few basic conclusions. First, and most importantly, the court ruled that the abuse and neglect statute applies to a child, not a fetus. The statutory definition within the child abuse statute clearly lays that out, providing that “abused or neglected child means a child less than 18 years of age.” Elsewhere in the statute, the language refers to a child as a person of an age “from birth . . . to 18,” and, in unrelated provisions, the statute expressly includes the “unborn child” when the legislature so intended.
Second, the court reasoned, because the law only protects a child after birth, the focus must be on the child’s condition at birth and afterwards. The mother’s prenatal conduct can be relevant in a determination of neglect or abuse, but only to the extent that it relates to the “child’s suffering or the risk of harm after birth.” Actual impairment at birth as a result of prenatal drug exposure would suffice (e.g., evidence of drug withdrawal symptoms or physical impairments), but without such proof, the critical focus must be on the evidence of imminent danger or substantial risk of harm looking forward. According to the court, the statute does not cover a past risk of harm during pregnancy. Proof of frequent drug use during pregnancy might support a finding of imminent harm, the court held, but “not every instance of drug use by a parent during pregnancy, standing alone, will substantiate a finding of abuse.”
Finally, and maybe most reassuringly given the current climate of hyper-policing pregnancy, the court said it was hesitant to read the statute broadly, given the serious consequences of a parent’s being found liable for abuse or neglect of a child. When such a finding happens, the parent is entered into a registry, which can then disclose its records to doctors, courts, child welfare agencies and some cases even employers. Having a record as a child abuser can only exacerbate other challenges the parent already faces.
The court didn’t completely eviscerate the agency action here. It said the agency was right to initiate an abuse and neglect investigation based on the drug test, but after evidence of imminent harm failed to materialize, the agency should have shifted to less invasive ways to help the family. Other provisions of the child protection law allow the agency to offer services, without compelling them, and even to provide temporary care and custody to a child in need.
And on that note the New Jersey Supreme Court struck the best balance. Attempts to address prenatal drug use and women in crisis must do so in a way that does not exacerbate those crises. Jailing women to prevent fetal harm only discourages those that need help from seeking it while overzealous prosecution can condemn a parent to a record as an abuser when the evidence is simply not there. And since these prosecutions disproportionately affect poor women and women of color, we must be clear and vocal that using criminal statutes or child endangerment laws as backdoor passage of fetal personhood has very serious civil rights implications across the board.