Sunday, December 20, 2015

Opioid-Addicted at Birth

In re M.M. and C.M., 2015 VT 122

By Donald M. Kreis

Cases generally reach and are decided by appellate courts at roughly the speed of molasses, so it is rare that a decision of the Supreme Court of Vermont speaks directly to the headlines of the day. But that’s exactly the case here, with respect to the epidemic of opioid and opiate abuse in Vermont and its effect on the most vulnerable among us—our children.

A boy, identified here only as C.M., was born on June 25, 2014, already dependent on opioids as the result of his mother’s prenatal abuse of Suboxone. In these times especially, it is only common sense that the state should take custody by adjudging the infant to be, in the parlance of Vermont law, CHINS—a child in need of supervision. Right?

At issue in the case are actually two children, C.M. and his older sister, M.M. Writing for a 4-1 majority, Justice Eaton affirms the trial court’s determination that both M.M. and C.M. were CHINS in light of undisputed evidence that mother had been in and out of drug treatment for nine years, had been kicked out of such a program at the time she became pregnant with the younger child, was purchasing Suboxone off the street, and had been convicted of driving while intoxicated in connection with one of two incidents in which police found mother driving M.M. around without required child-safety restraints.

Mother checked herself into a hospital for drug treatment a month prior to giving birth to C.M., and thus at the time of the birth she was again taking opioids under medical supervision. The SCOV nevertheless affirms the trial court’s finding of CHINS.

Justice Robinson does not agree. In her dissent, she expresses grave concerns about the possibility if not the certainty that C.M. was adjudicated a child in need of supervision, which places him in the custody of the Department of Children and Families—not because of dangers faced by the child but because of bad stuff the mother did prior to the child’s birth.

“I emphasize,” writes Justice Robinson, “that I am not arguing that a pregnant mother’s consumption of opioids during pregnancy is not relevant in a CHINS case. Combined with evidence of how the mother’s opioid consumption affects her ability to parent, the evidence may be highly relevant. But I am arguing against a particular analytical path to a CHINS determination—one that relies on the harm to a fetus in utero, and does not focus on the harm or risk of harm experienced by the child after birth.”

The majority opinion concedes that when a child is born addicted to opioids, that fact standing alone does not necessarily require a finding of CHINS. The Court stresses that “[t]o hold otherwise would serve as a disincentive for pregnant women to seek out treatment for their addiction.” But the majority appears to have added a critical condition—that the addiction of the child at birth must be “the result of the mother consistently and fully following a bona fide addiction treatment program.”

This mother misbehaved during the pregnancy and lost her opportunity for treatment—and opted to get her Suboxone on the street. That, says the Court, “is fraught with danger in a host of ways, including abuse of Suboxone itself.” What was the misbehavior that cost her access to her treatment? She lost her license, owing to a DUI conviction, and thus could no longer get to treatment.

According to Justice Robinson, it doesn’t matter whether the CHINS finding was affirmed because of prenatal neglect or because the mother had reentered treatment only weeks before the birth—either option being a reasonable inference from the majority opinion—because neither is a lawful basis for depriving a parent of custody. Justice Robinson forthrightly admitted her suspicion that children born addicted to opioids “lack adequate parental care necessary for their well-being.” But her point is that suspicions of this sort, however well-grounded, cannot become the basis for CHINS determinations—which require evidence.

“I am unwilling,” writes Justice Robinson, “to yield to general assertions of “common sense,” even my own, with respect to a disease—drug addiction—that has historically been stigmatized and has in some cases given rise to reflexive and less-than-fully-informed reactions.” To support that view, she cites cases holding unambiguously that CHINS cannot simply be assumed in cases of maternal mental health problems or mental retardation.

She might also have described the scenario from this New Jersey decision the majority discussed because, in essence, it is this case but with considerably less stigma. Decided by the Supreme Court of New Jersey in 2014, the case involved a woman whose newborn had to go through methadone withdrawal. But in that case, the newborn’s addiction stemmed from a hand injury suffered by the mother, for which she had been taking Percocet. When the mother subsequently learned of the pregnancy, her doctors advised a methadone maintenance program because cessation of the Percocet would have otherwise harmed the fetus. The New Jersey court ruled these facts insufficient to establish abuse and neglect—the Garden State’s equivalent of a CHINS determination. Different statute and a more responsible mother, rules the SCOV majority in rejecting this precedent as useful.

The New Jersey court did not simply order the child returned to her mother—it remanded for the trial court to figure out whether all of her other issues and problems (which were not unlike those of C.M.’s mom) could support an abuse and neglect finding. A similar result here would have addressed Justice Robinson’s concerns. But, of course, we’re in the middle of a drug-abuse epidemic and our family divisions' CHINS dockets are more than full without being told by the SCOV to do cases over.

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