                      RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-3662-13T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,                      APPROVED FOR PUBLICATION

                                        February 25, 2016
     Plaintiff-Respondent,
                                       APPELLATE DIVISION
v.

K.M.,

     Defendant-Appellant.
______________________________

IN THE MATTER OF G.G.,
a minor.
______________________________

         Argued November 12, 2015 - Decided February 25, 2016

         Before Judges Fuentes, Koblitz and Gilson.

         On appeal from Superior Court of New Jersey,
         Chancery Division, Family Part, Middlesex
         County, Docket No. FN-12-65-14.

         Clara S. Licata, Designated Counsel, argued
         the cause for appellant (Joseph E. Krakora,
         Public Defender, attorney; Ms. Licata, on
         the brief).

         James F. LaFargue, Deputy Attorney General,
         argued the cause for respondent (John J.
         Hoffman, Acting Attorney General, attorney;
         Melissa Dutton Schaffer, Assistant Attorney
         General, of counsel; Mr. LaFargue, on the
         brief).

         Danielle Ruiz, Designated Counsel, argued
         the cause for minor G.G. (Joseph E. Krakora,
              Public Defender, Law Guardian, attorney; Ms.
              Ruiz, on the brief).

      The opinion of the court was delivered by

FUENTES, P.J.A.D.

      Defendant K.M.1 is the biological mother of G.G., a boy born

in April 2013.          She appeals from the order entered by the Family

Part finding she abused or neglected G.G. within the meaning of

N.J.S.A. 9:6-8.21(c)(4)(a), after the child was born manifesting

signs    of   physical     distress      caused   by   withdrawal       from    opioid

addiction.       We affirm.

      G.G. was born at St. Peter's University Hospital in New

Brunswick     weighing      9   pounds    and   3.6    ounces,    and    showing       no

apparent signs of distress or abnormalities.                      However, during

the first three days after his birth, the medical staff noted

the     infant    was     exhibiting     symptoms      consistent       with     opioid

withdrawal.        G.G.     was   thereafter      admitted       to   the      neonatal

intensive     care      unit    (NICU)    for   respiratory      distress.           The

hospital staff contacted the Division of Child Protection and

Permanency (Division), which dispatched a caseworker to meet and

discuss the situation with defendant.




1
   We use initials and fictitious names to protect the
confidentiality of the participants in these proceedings
pursuant to Rule 1:38-3(d).




                                           2                                   A-3662-13T3
     Upon arriving at the hospital, the Division caseworker saw

G.G. at the NICU before meeting with defendant.                     The caseworker

noted G.G. was "jerking his arm up above his head."                         By this

time, the nursing staff was actively monitoring the infant for

withdrawal symptoms.       Defendant admitted to the caseworker she

was addicted to oxycodone, sold as Roxicodone or "Roxis," prior

to   her    pregnancy.2         Defendant       also    admitted    to    illicitly

acquiring Suboxone,3 an opioid analog prescribed by physicians to

treat the physical symptoms of opioid withdrawal.                      She told the

caseworker she ingested Suboxone two to three times per week and

smoked marijuana during her pregnancy.

     The NICU medical staff began treating G.G. with morphine

after      learning    defendant's          history     of    opioid     addiction,

including     her     efforts        to     self-medicate     the      symptoms    of

withdrawal by using Suboxone during her pregnancy.                     G.G. spent a

total of twenty-two days in the hospital to recover from the

withdrawal     symptoms.        He    was    released    to   defendant    and    his

biological father in late May 2013.


2
  K.M. testified the opioid-based prescription pain medication
she took was not prescribed to her by a physician. She took the
medication a physician prescribed for her friend to alleviate
the pain the friend experienced from a knee injury.
3
  Suboxone is a controlled dangerous substance within the meaning
of N.J.S.A. 2C:35-2, and can be acquired legally in a pharmacy
only with a prescription from a licensed physician.



                                            3                               A-3662-13T3
       On July 9, 2013, the Division filed an Order to Show Cause

(OTSC) and a Verified Complaint against defendant in the Family

Part pursuant to N.J.S.A. 30:4C-12, seeking legal custody of

G.G.    and      responsibility        for    his      physical      welfare    and

supervision.         That same day the Division amended the complaint

to charge defendant with abuse or neglect of G.G. under N.J.S.A.

9:6-8.21(c)(4).        The Family Part granted the Division's request

and scheduled the return date for the OTSC for August 12, 2013.

       By the time the case returned to the court, defendant had

completed substance abuse counseling and had attended supervised

visitation with G.G., who was by then cleared of any medical

issues related to his opioid withdrawal.                   The court conducted

fact-finding hearings on December 9, 2013, January 29, 2014,

February       18,   2014,   and     February    24,     2014.      The   evidence

presented at these hearings established that defendant became

addicted to oxycodone approximately four years before she gave

birth    to     G.G.   in    2013.      She     began    taking     her   friend’s

prescription pain medication to alleviate the pain caused by a

sprained ankle she suffered while playing college sports.                       She

continue to ingest this medication in pill form multiple times a

week until she realized she was pregnant in October 2012.

       While    pregnant,    defendant       came   to   the     realization   that

continuing to abuse these drugs would be detrimental to the




                                         4                                A-3662-13T3
welfare    of    the    fetus.     Based       on    the    research   she    conducted

online, K.M. discovered that abruptly stopping the use of this

opioid analgesic could cause a miscarriage.                         She also learned

about the opioid analog Suboxone, that, according to defendant,

physicians prescribed to pregnant women to help with withdrawal

symptoms.       However, instead of consulting a physician to confirm

Suboxone was safe to take while pregnant and thereafter obtain a

prescription      for    the     medication,        defendant      again    decided       to

self-medicate       by    obtaining     the         drug    from   a   friend.          She

thereafter continued to use Suboxone throughout her pregnancy

and made the conscious decision not to disclose she was taking

this medication to her obstetrician.

    Defendant          called    Dr.   Loretta        P.    Finnegan   as    an    expert

witness.     The Family Part admitted Dr. Finnegan as an expert in

"pediatrics and with a specialty in the area of neonatology and

specifically       prenatal        addiction          and     neonatal       abstinence

syndrome."        Based on a 2010 study in the New England Journal of

Medicine        which     "compared      the         effects       methadone       versus

Buprenorphine" (the generic term for Suboxone),4 Dr. Finnegan

testified the study found "both medications were appropriate for

pregnant women."

4
  Hendrée E. Jones et al., Neonatal Abstinence Syndrome After
Methadone or Buprenorphine Exposure, 363 New Eng. J. of Med.
2320 (2010).



                                           5                                      A-3662-13T3
     According to Dr. Finnegan, babies who are born after their

mothers    have    ingested    Suboxone         during    pregnancy        are    closely

monitored every four hours after birth to determine the extent

of any withdrawals symptoms.               Medical staff assess the severity

of the withdrawals using a twenty-one point score.                          The visual

symptoms     include      jerking,    sneezing,          loose    stools,        sucking,

hypertonia and tremors.            Because defendant did not disclose she

took Suboxone to the medical staff who attended to her during

G.G.'s delivery, there was a three-day delay in the start of

treatment to alleviate the baby's withdrawal symptoms.

     Dr.   Finnegan       testified       that    Suboxone       is   an   appropriate

medication    to    administer       to    pregnant      women    withdrawing          from

opioids.      In    her    report,        Dr.    Finnegan    opined        that    G.G.'s

withdrawal     symptoms       could       have     been     exacerbated           by    the

hospital's course of treatment.                 Dr. Finnegan also stated in her

report that while "urine toxicology studies of G.G. did not

verify opioids were detected . . . one can deduce that there was

a   passive       transfer    of     opioids       from     the       mother's         blood

circulation to her fetus during pregnancy."                      When asked if G.G.

suffered from withdrawal from the drugs he was exposed to in

utero, Dr. Finnegan responded: "Yes."

     Dr.   Finnegan       equated    the    symptoms      G.G.    experienced           with

neonatal abstinence syndrome (NAS).                 The fact that the infant's




                                            6                                     A-3662-13T3
symptoms     subsided        when    the     medical     staff     began       morphine

treatment establishes G.G. was suffering from NAS.                         When asked

to opine whether G.G. suffered harm after birth, Dr. Finnegan

responded:

            If you take harm in the strict sense of the
            definition, it would mean that this baby had
            some physical problem.    The baby obviously
            had a withdrawal.   So, in the strict sense
            of the word, you would say yes.      However,
            withdrawal is basically a side effect of
            medication.    The mother took medication
            that's legally used in the medical community
            for the treatment of opioid addiction.

    Based on these uncontested facts, the Family Part judge

concluded       defendant    had    abused      or   neglected    G.G.   within      the

meaning of N.J.S.A. 9:6-8.21(c)(4)(a).                    The judge stated her

reasons    in    an   oral   opinion       delivered    from     the   bench    at   the

conclusion of the fact-finding hearing.

            [Defendant] was addicted to Roxis and found
            she was pregnant.      She did not go to a
            doctor at that point. She did research
            online on Suboxone so she wouldn't have
            withdrawals.    I never heard it anywhere,
            other then [sic] Dr. Finnigan's report, that
            that was for her baby.     In fact I got the
            impression even from her it was for her own
            withdrawal. She took it a couple of times a
            week   and   indicated   she   never  got  a
            prescription but she got it [from] friends.
            We don't know how much she was taking. We
            don't know what type - - if a drug is bought
            off the street, we certainly don't know the
            potency of it.    We don't know if it's been
            laced with something else, and basically
            that was a very big risk for mom to take.
            We have no information, we just know that



                                            7                                  A-3662-13T3
            she bought        it   off       the    streets   or    her
            friends.

            She never sought assistance from a pain
            management doctor.     She never told her
            prenatal doctor.   Never told the father of
            the child, just continued to take the drug
            during her entire pregnancy.   And the fact
            that she did not believe it was a drug, I
            don't find credible.      She knew it was
            illegal to take this, and frankly she
            indicated she was scared that they would
            take her baby. She continued to do without
            being monitored by a doctor throughout her
            pregnancy, and I find that clearly is a
            failure to provide a minimum degree of care.
            . . . Also I think it's important to note,
            that even when she was in the hospital and
            questioned by the caseworker she continued
            to say that she was not taking any drugs or
            using any drugs.

       In this appeal, defendant argues the record does not show

G.G. suffered actual physical, mental, or emotional harm due to

defendant's    ingestion      of   Suboxone        during   her   pregnancy.      We

agree with defendant in this limited respect.                       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

needless suffering.




                                         8                                A-3662-13T3
    The analysis in an abuse or neglect case should "focus on

the harm to the child and whether that harm could have been

prevented had the guardian performed some act to remedy the

situation or remove the danger."     G.S. v. Dep't of Human Servs.,

157 N.J. 161, 182 (1999).        Under N.J.S.A. 9:6-8.21(c)(4) an

"abused or neglected child" is

         a child whose physical, mental, or emotional
         condition has been impaired or is in
         imminent danger of becoming impaired as the
         result of the failure of his parent . . . to
         exercise a minimum degree of care (a) in
         supplying the child with adequate food,
         clothing, shelter, education, medical or
         surgical care though financially able to do
         so or though offered financial or other
         reasonable means to do so[.]

         [(Emphasis added).]

    In Department of Children & Families v. T.B., 207 N.J. 294,

306 (2011) (quoting N.J.S.A. 9:6-8.21(c)(4)), the Supreme Court

held that in order to find abuse or neglect the parent must fail

"to exercise a minimum degree of care."       The Court has defined

"minimum degree of care" as denoting

         a lesser burden on the actor than a duty of
         ordinary care. If a lesser measure of care
         is required of an actor, then something more
         than ordinary negligence is required to hold
         the actor liable.    The most logical higher
         measure of neglect is found in conduct that
         is grossly negligent because it is willful
         or wanton. Therefore, we believe the phrase
         "minimum degree of care" refers to conduct
         that is grossly or wantonly negligent, but
         not necessarily intentional.



                                 9                         A-3662-13T3
            [G.S., supra, 157 N.J. at                  178     (quoting
            N.J.S.A. 9:6-8.21(c)(4)).]

    In New Jersey Division of Child Protection & Permanency v.

Y.N., 220 N.J. 165, 183, 187 (2014), the Supreme Court reversed

this court's decision finding a mother "violated the abuse and

neglect   statute    solely   because        her    newborn    suffered    neonatal

abstinence    syndrome   as     a    result    of    her     participation    in    a

medically prescribed methadone maintenance treatment program."

In sharp contrast to the uncontested facts here, the defendant

in Y.N. "followed the advice of a medical professional and later

entered into a methadone maintenance program."                  Id. at 184.

    Mindful of the public policy implications of discouraging

opioid    addicted   pregnant       women    from    seeking    informed    medical

advice if they were held liable for abuse or neglect under Title

9 after their children are born, the Court in Y.N. held:

            N.J.S.A. 9:6-8.21(c)(4)(b) does not require
            a finding of abuse or neglect when an
            addicted woman, who learns that she is
            pregnant,     seeks    timely    professional
            treatment   for   her  addiction  that   will
            improve the outcome for her unborn child.
            We    hold     that,    absent    exceptional
            circumstances, a finding of abuse or neglect
            cannot be sustained based solely on a
            newborn's   enduring   methadone   withdrawal
            following a mother's timely participation in
            a bona fide treatment program prescribed by
            a licensed healthcare professional to whom
            she has made full disclosure.

            [Id. at 185-86 (emphasis added).]



                                        10                                 A-3662-13T3
     Here, we are satisfied defendant's conduct rises to the

level of grossly negligent as defined in G.S., supra, 157 N.J.

at 178, and as a consequence, we find that she committed an act

of   neglect       against    G.G.     under      N.J.S.A.       9:6-8.21(c)(4)(a).

Although we recognize a mother's physical and emotional stress

after childbirth, see A.H.W. v. G.H.B., 339 N.J. Super. 495, 504

(Ch. Div. 2000), defendant was obligated to disclose the known

necessary information to avoid endangering the health of her

newborn     child.       Defendant          willfully      withheld     the    timely

disclosure of key medical information about medication she was

taking during her pregnancy that could have prevented three days

of needless suffering to her infant son.                         We emphasize that

defendant'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.       See Y.N., supra, 220 N.J. at 169-72, 184.

     At this point, we must pause to make clear our disagreement

with the trial court's analysis in one respect.                         The Family

Part's     analysis    focused       on    defendant's        conduct   during      her

pregnancy.         Specifically,      the       court   noted     defendant     "never

sought assistance from a pain management doctor.                    She never told

her prenatal doctor.           Never told the father of the child, just



                                           11                                 A-3662-13T3
continued to take the drug during her entire pregnancy."                       There

is no evidence in the record that this aspect of defendant's

conduct harmed G.G. in any way.

      Defendant neglected her infant son within the meaning of

N.J.S.A.    9:6-8.21(c)(4)(a)      when     she   failed    to   disclose      in   a

timely manner her use of Suboxone to the neonatal staff after

G.G. was born.    If defendant had disclosed this information in a

timely fashion, the neonatal staff could have begun monitoring

G.G.'s condition in the manner consistent with Dr. Finnegan's

testimony and intervene with morphine treatment or other forms

of   pharmacological       treatment   as   the   child's    needs    warranted.

The three days G.G. suffered with withdrawal symptoms could have

been avoided.

      However, our disagreement with the trial court's analysis

in   this   respect   is    legally    inconsequential.          It   is   a   long

settled principle of appellate jurisprudence that "an appeal is

taken from a trial court's ruling rather than reasons for the

ruling."    State v. Adubato, 420 N.J. Super. 167, 176 (App. Div.

2011), certif. denied, 209 N.J. 430 (2012).                 We may affirm the

final judgment of the trial court "on grounds other than those

upon which the trial court relied."           Ibid.

      Affirmed.




                                       12                                  A-3662-13T3
