N.J. Supreme Court hears arguments in fetal neglect case

    New Jersey’s highest court heard oral arguments Monday on whether a mother can be deemed neglectful if her newborn tests positive for illegal drugs. The case stems from a 2007 incident where a woman was alleged to have taken cocaine shortly before she gave birth.

    The mother in this case is referred to only as “A.L.” Lower courts found her in neglect of her newborn boy when cocaine was detected in his stool sample immediately after birth.

    The question at hand is whether a positive test in a newborn is enough harm to make A.L. an abusive mother.

    At stake is whether the state’s Division of Youth and Family Services can intervene on the child’s behalf.

    “The fact that a pregnant woman engages in conduct, which we don’t necessarily approve of, is not a basis to intervene,” said Clare Licata, a public defender who, among other lawyers, argued on behalf of the mother at Monday’s hearing. “The intervention and the subsequent trial court findings must be based on evidence.”

    Licata says the state failed to provide expert testimony on whether the amount of cocaine found in the infant’s system was enough to cause harm.

    It was a point the panel of judges seemed to take seriously.

    Arguing against Licata was James Harris, a lawyer from the state’s attorney general’s office.

    “I would say that the question of whether taking cocaine the night before you give birth to a child risks imminent impairment to the child is a closed question,” said Harris.

    Harris argued that the woman’s drug use before the baby’s birth is indeed enough harm for the Division of Youth and Family Services to intervene.

    Meredith Schalick, a professor at the Rutgers School of Law-Camden, teaches law students how to represent children in such cases.

    Schalick says she and her colleagues have been following this case closely.

    “This is an unsettled area of the law,” said Schalick. “[It is unsettled] whether or not just the positive test on a baby is enough to say to a parent, ‘That makes you an abusive parent.’ “

    A decision from the court is expected in the next three to six months.

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