Crack Cocaine and Pregnant Woment - Balancing the Rights of the Unborn Child Versusthe Rights of the Mother in the War Against Drugs.

Christopher Adam Hemmel, Esq., 1992.

I. Introduction.

Christy DiLella's 2-year-old foster daughter, Leigha, did not shed a tear when a toy truck fractured her toe in three places. The child did not so much as grimace, DiLella recalled, even when a doctor popped a bone back into place.

Leigha is impervious to pain. Repeated exposure to crack cocaine in the womb left her nervous system so damaged that Leigha never knows if she has injured herself. Likewise, she is unable to physically feel the soothing touch of a hug or a kiss.

Her pediatricians suspect that nerve impairment is but one symptom of Leigha's exposure to a host of drugs while she was in the womb. Her biological mother also used heroin and alcohol regularly throughout the first six months of her pregnancy. Leigha, blond and blue-eyed, was born five weeks prematurely, and now suffers from an array of problems that are common among drug-affected children: language delays, extreme hyperactivity, behavioral problems and lung ailments.

Joanique Suggs looks like most any 3-month-old.

But Joanique has stopped breathing six times and spent more than a month in the hospital. She's also been unable to sleep for more than a few minutes at a time, 'throws up like a faucet,' and has trouble bending her arms.

Joanique is a 'crack' baby.

Five days after Joanique was born 'her eyes turned up in her head and she began to shake and scream,' her mother, Laverne Suggs, recalls tearfully. Like other drug-exposed babies, she has a higher risk of sudden infant death syndrome and must be attached to a monitor when she sleeps.

The dangers posed to a fetus by its mother's consumption of alcohol or cigarettes, while very real, are beyond the reach of the legal system by virtue of the legality and widespread acceptance of alcohol and tobacco in our society. However the use of illegal substances by pregnant women is not beyond the reach of the law, and such maternal substance abuse has come under tremendous fire recently, especially in a politically charged "war on drugs" environment. Since the mid-eighties the problem of drug abuse by pregnant women has escalated to shocking new levels, chiefly due to the advent of "crack" cocaine.

This paper will explore how New York and California are dealing with mothers of children born with a positive toxicology for illegal substances, chiefly cocaine, within the framework of civil neglect and dependency proceedings. Examination of the caselaw in this area will focus on New York and California where the majority of drug related neglect cases have been reported.

II. The Nature and Scope of the Problem.

A. "Crack" Cocaine.

Before examining the relevant caselaw involving neglect proceedings and crack, a brief explanation of what crack is, how it affects the user, and how it affects the user's unborn fetus is warranted. Revkin has provided clear explanations in each of these areas, which appear below.

Cocaine is derived from the leaves of the coca plant of Central and South America, in which it occurs naturally in an alkaloid form. At the wholesale level, the drug is almost always bought and sold as a hydrochloride salt that has been "cut" or diluted, by mixing it with inert substances. As a salt, it's water-soluble and can thus readily cross the mucous membranes in the nose. By that route it takes about three minutes for the drug to reach the brain. With crack, that trip can take as little as eight seconds.

Crack is manufactured by "cooking" cocaine hydrochloride in boiling water and baking soda, a process that converts the salt back into the alkaloid, which can then precipitate out of the solution as pure cocaine crystals.

B. Effects of Cocaine on The User.

In the brain, cocaine stimulates certain neurons to release their loads of neurotransmitters, the chemicals that carry messages across the gap between one neuron and the next. Most affected are the compounds that cause much of the 'fight or flight' reflex - the rush of accelerated heart rate, raised blood pressure, and lowered digestive activity with which the body prepares itself for action. Normally, after these neurotransmitters are released, they are quickly sopped up again to be released when the next bit of neural activity occurs. But cocaine also blocks the recycling of neurotransmitters. The result is a brief period of intense stimulation - cocaine users talk of euphoria and mental clarity - that is followed by a tumultuous crash as the nervous system finds itself fresh out of the chemicals it needs to do normal things like thinking and feeling. Frequent users of the drug fall into a cycle in which the aftermath of the high - intense depression, paranoia, loss of appetite, sexual impotence, and profound irritability - leads right back to the need for more cocaine.

Thus, the cocaine user becomes easily trapped in a cycle of addiction.

C. Effects of Cocaine on the Fetus.

It is axiomatic that a drug addict does not take care of her body. As the addiction becomes more pronounced, the addict spends more time and money supporting the drug habit and less time and money on other needs. For the pregnant addict, care of the fetus falls by the wayside as financial and other resources are redirected from the acquisition of necessities to the acquisition of more of the chosen drug.

A fetus is particularly vulnerable to cocaine for several reasons. First, although the placenta does shield the womb from many large, complex molecules - particularly those that can't diffuse across fatty cell membranes - it is an open door to cocaine. Because the cocaine molecule 'likes' fatty compounds, the drug readily crosses the placental barrier. Once cocaine enters the fetus's blood and tissues, it lingers there much longer than in adults: the liver has not yet developed into the powerful detoxifying agent it will become, and cocaine is broken down much more slowly.

Because the fetus breaks down cocaine more slowly, the effect of the cocaine in utero is even more powerful than the effects experienced by the mother. Cocaine also restricts the flow of blood to the uterus and placenta, reducing the vital supply of nutrients needed by a developing fetus.

For the baby exposed to cocaine in utero, things usually do not improve much after birth. Assuming the baby is lucky enough to have a mother or father who is not addicted to the drug, the baby may still be afflicted with a variety of problems including low birth weight, decreased head size, physical deformities, brain damage, drug withdrawal symptoms, tremors and gaze aversion. One study of cocaine exposed babies revealed that at the age of one month, "...the cocaine-exposed babies still have not reached the functional level of a two-day-old drug-free infant."

Current available data suggests that 10 percent of all newborns in the U.S., approximately 375,000 per year are exposed to illegal drugs in utero - with cocaine being the drug of choice. In some major cities including New York and Los Angeles, hospitals report the percentage at 20 percent or more. Since it is not unusual for these babies to stay in the hospital almost five times longer than drug-free babies, and for their care to be thirteen times more expensive, the high cost of caring for crack babies makes the problem one of financial as well as social dimensions.

III. Response of States in the Courtroom

The use of drugs by pregnant women is hardly new. "For many years, the unborn have been exposed to opiates, barbiturates, inhaled cocaine and a panoply of other drugs. And fetal alcohol syndrome, brought on by drinking during pregnancy, is believed to be a leading cause of mental retardation in the young." What is new is the startling rise in cocaine use by pregnant women and the host of problems the drug causes for the children born of drug-laced pregnancies. "By the latest estimates, more than 1 million U.S. women use cocaine. Moreover, crack has spurred the use of other drugs. Women who take cocaine are likely to use heroin to prolong a high, then tranquilizers and alcohol to come down. They may indulge in marijuana, PCP and amphetamines. As a result, many crack babies steep in a stew of drugs while in the womb." One of the ways in which states are dealing with the problem concerns looking to the condition of the newborn at birth in making determinations of neglect.

A. Evolution and Analysis of The New York Law.

Petitions alleging parental neglect in New York are brought under McKinney's Family Court Act Article 10 section 1012(f) (F.C.A. § 1012(f)). (See the appendix for the full text of the statute). F.C.A. § 1012(f) provides, in pertinent part, that:

(f) "Neglected child" means a child less than eighteen years of age

(i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care

(B) ... by misusing a drug or the extent that he loses self-control of his actions;...provided, however, that where the respondent is voluntarily and regularly participating in a rehabilitative program, evidence that the respondent has repeatedly misused a drug or drugs...shall not establish that the child is a neglected child in the absence of evidence establishing that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as set forth in paragraph (i) of this subdivision;...

Because the right to parent is considered to be fundamental, the state must not interfere with the relationship between parent and child unless the situation clearly calls for state intervention. Under F.C.A § 1012 the court must find actual impairment or imminent danger of impairment before making an adjudication of neglect. The requirements of F.C.A. § 1012 should be kept in mind as the decisions of the New York courts are examined.

One of the first cases in New York to address the issue of maternal drug abuse as it related to neglect was In The Matter of Vanessa F., Infant. While the case was primarily concerned with the abandonment of a two year old, the child had been born with symptoms of drug withdrawal. The court expressly held in dicta that a "new born baby having withdrawal symptoms is prima facie a neglected baby under the Family Court Act, Article 10..." The Court did not set forth its reasoning for the holding, but relied upon the drug withdrawal as one of the factors to be considered in determining the merits of a neglect petition. The court cited Matter of John Children, a 1969 case in which the newborn was suffering from severe withdrawal symptoms and required immediate life-saving treatment. But John Children does not stand for the proposition that a baby born with withdrawal symptoms is prima facie a neglected child. In John Children, a consolidated case, the mothers were drug addicts who were adjudicated neglectful parents under F.C.A. § 1012(b). Because the mothers involved were addicts, there was no need to look to the condition of the newborns in making a determination of neglect.

Several years later in In The Matter of "Male" R., a neglect proceeding was brought against a women after her child was born with drug withdrawal symptoms. Additionally, the mother was alleged to be a drug addict, and she had refused to enroll in a drug rehabilitation program. The court agreed with the petitioner that the child involved was neglected on the basis of (1) drug withdrawal symptoms at birth, (2) continued drug use by the mother and (3) inability to care for the child as a result of the drug use. The court looked to the requirements of F.C.A. § 1012(f) in making the decision that the child involved was in imminent danger of impairment. In this case the imminent danger arose not from the prenatal use of illegal drugs, but from the mother's continued use of barbiturates.

The court carefully drew the distinction between imminent danger of impairment and actual impairment. The court noted that "With respect to imminent danger of impairment, when Section 1012(f) is read along with section 1046(a)(iii) of the Act, it is clear that the evidence in this case is sufficient to support a finding of neglect." But the court would not go so far as to reach a finding of neglect on the basis of the newborn's drug withdrawal symptoms alone, the so-called actual impairment in this case. In fact, the court said:

Although it is clear that as a result of respondent's conduct, the infant's physical condition at and for some time after delivery was actually impaired, it is far from clear that such impairment, caused as it was by pre-natal maternal conduct, would be sufficient, standing alone, to supply a finding of neglect.

Additionally the court noted the comments (about an infant's drug withdrawal symptoms) of the Vanessa F. court as dicta, and then noted that it was not clear from that opinion if the court was referring to the withdrawal symptoms as a basis for finding actual impairment, or as evidence of imminent danger of impairment. The court found the existing authority on the subject, including Vanessa F., inconclusive.

The New York Family Court squarely addressed the issue of neglect and maternal drug abuse in the case In The Matter of Sharon Fletcher. In Fletcher, a neglect petition was filed alleging that "a child with a positive toxicology for cocaine was born to the respondent and that she admitted to using cocaine during her pregnancy." The respondent was not enrolled in any drug treatment program and there were no allegations of drug addiction by her after the child was born. The court addressed the issue of "Whether a mother's pre-natal drug use alone can form the basis for a finding of neglect under § 1012(f)(i)(b) of the Family Court Act." The petitioner also asserted that the prenatal drug use of the respondent could give rise to an inference of continued and repeated drug use sufficient to support a finding of neglect.

Expressly rejecting the notion of prenatal child abuse or neglect, the court refused to reach the conclusion that drug use during pregnancy was indicative of repeated drug use after the birth of a child. In order for the court to reach a finding of neglect the petitioner was required to present additional facts which could prove potential harm or imminent danger of impairment to the child. The court pointed out the burden of the petitioner to "plead and prove respondent's potentially harmful behavior to establish neglect" under the Family Court Act. In dismissing the petition the court noted:

This court is not unmindful of the damaging effect of regular drug use on one's ability to parent. It is not impossible to sustain a cause of action for neglect based on pre-natal drug use. However, to do so, the petitioner must prove a direct connection between the use and the child's safety. For example, to plead and prove a parent's drug addiction would be sufficient for a finding of neglect. The Petitioner could possibly be able to plead and prove that a non-addicted parent's past drug use places the child in danger based on appropriate expert testimony. The key phrase is "plead and prove". There is no inference to be drawn from the Family Court Act that a mere use, or even occasional uses, of a controlled substance prior to a child's birth puts it in imminent danger of harm. One can only speculate as to how many good parents had occasionally used marijuana, for example, prior to the birth of their children. This court would be over-reaching by far to infer that each of them is a neglectful parent. Acceptance of the Commissioner's theory of this case would require such an inference. It is unwarranted.

The Fletcher court also expressed concern for the constitutional rights of pregnant women and the possible encroachment upon those rights by the state, saying:

The Legal Aid Society's argument that the Family Court Act provides for pre-natal child neglect is rejected. I see no authority for the State to regulate women's bodies merely because they are pregnant. By becoming pregnant, women do not waive the constitutional protections afforded to other citizens. To carry the Law Guardian's argument to its logical extension, the State would be able to supercede a mother's custody right to her child if she smoked cigarettes during her pregnancy, or ate junk food, or did too much physical labor or did not exercise enough. The list of potential intrusions is long and constitute entirely unacceptable violations of the bodily integrity of women.

However the Nassau County Family Court reached a contrary conclusion as the Fletcher court on virtually the same issue. In Department of Social Services on Behalf of Mark S. v. Felicia B., the mother gave birth to a child who tested positive for cocaine toxicology. A neglect petition was filed against the mother, who moved to dismiss on the grounds that such a petition could not be "based upon the pre birth conduct of the mother which impacted on the fetus." The court expressly rejected the respondent's contentions. The court relied upon a rule of common law, asserting that one's actions may have resulting consequences for which the actor must take responsibility. The court also pointed to tort law in asserting that the duty owed to the fetus by the mother was no less than the duty owed to the fetus by a third party such as a doctor. The court held that the petition could be sustained if the baby was born with a positive toxicology for cocaine, as the ingestion of the cocaine was an act which "impaired the physical, mental or emotional condition" of the child within the meaning of the Family Court Act. The court did not discuss the issue of future or imminent danger to the child.

The court's reasoning in Mark S. is flawed for two reasons. First, because parenting is a fundamental right which will not be lightly interfered with by the state unless clearly warranted, those instances where such interference is appropriate must be clearly set forth by the state. State statutes serve this important purpose, setting out the conditions under which a child may be found to be neglected, and providing fair warning or notice to parents of what the state deems unacceptable treatment of children. By making a neglect determination based upon common law principles, the Mark S. court sidesteps the important function, and arguably the constitutional protections, meant to be served by the Family Court Act - fair notice to parents.

Secondly the court completely ignored the requirement of proving that the child involved was in imminent danger of impairment and did not even address the severity of the actual impairment, if any, caused by the drug use. Instead, the court made a common-law type argument, while paying little attention to the appropriate statute, F.C.A. § 1012(f). While the court did mention of F.C.A. § 1046, this focus was misplaced, as there were no allegations in this case that the mother was still addicted after the birth of her child.

In In The Matter of Fathima Ashanti K.J. Child neglect proceedings were brought against the birth mother when her child was born with a "positive toxicology for cocaine, symptoms of drug withdrawal and low birth weight." The child was allegedly born to drug abusing parents. The mother did not cooperate with a drug treatment program and had not received any prenatal care. The issues before the court were (1) "Whether an infant born with a positive toxicology is a child entitled to be protected under the Family Court Act" and (2) "Whether a mother's use of drugs during pregnancy can be the basis of a neglect determination." After describing some of the shocking problems associated with cocaine-tainted pregnancies and newborns, the court answered the first issue in the affirmative, reasoning that "the state through the family court had inherent power to protect and promote the welfare of young children under the parens patriae doctrine. The state's authority to protect the viable fetus, argued the court, has it's origins in Roe v. Wade, where the U.S. Supreme Court acknowledged the state's '...important and legitimate interest in potential life...' " The court went on to say "since the state can mandate that a woman complete her term of pregnancy once the fetus becomes viable, it follows that the state has the obligation and the power to protect the fetus from abuse or neglect by it's parents."

The court's reference to the Roe decision was set forth to bolster the argument that the state had full authority to intervene during the third trimester of pregnancy where the well-being of the unborn child was at stake. The court explicitly made reference to the state's interest at fetal viability. Following the reasoning of Roe a woman is still free to choose whether to carry her pregnancy to term, up until the point at which the states interest arises.

Surprisingly this argument leaves the court without any power to intervene during the first two trimesters of pregnancy, when the fetus may still be damaged by maternal substance abuse. Additionally the court even admitted that damage to the fetus could occur during the first two trimesters, saying "Those cocaine-exposed infants, whose exposure was limited to the first trimester demonstrated poor responses to their environments for at least the first two to three months of life. After one month, infants still may not have developed beyond the level of two-day old non-drug exposed infants." So although the court held that the state could protect a child in the third trimester, it admitted that damage could still occur during the first two trimesters, and it was silent on the state's power to protect unborn children during this time. By this court's reasoning a child who sustains cocaine induced damage in utero during the first or second trimester who is subsequently born without a positive toxicology for cocaine, but who is nonetheless injured is not entitled to any type of the protection by the state. The court's rationale in Fathima appears even weaker when one considers the issue properly before the court. The court could have reached a finding of neglect by looking to the drug addiction of the parents and basing its decision on F.C.A. § 1046. Instead the court chose to ignore § 1046, base its decision on § 1012, and further muddy the judicial waters in this area of the law.

The court answered the second issue in the affirmative, although the opinion does not contain any reasoning as to why the mother's use of drugs while pregnant can be the basis of a neglect determination under the Family Court Act.

The New York court system faced the issue of maternal substance abuse again when it considered the case In The Matter of Stefanel Tyesha C. In Stefanel, a consolidated case, two children were born with a positive toxicology for cocaine, and their mothers had neglect petitions filed against them. In the first case the petition alleged that Alexandra B. had failed to exercise a minimum degree of care in that (1) she was unable to provide proper supervision and guardianship of her child by reason of her misuse of drugs including cocaine. Her baby was born with a positive toxicology for cocaine. (2) She admitted using drugs during her pregnancy. (3) She was not enrolled in a drug rehabilitation program. In the second case the petition alleged that Leslie C. had failed to exercise a minimum degree of care for the same reasons: (1) A child born with a positive toxicology for cocaine, (2) Admission of drug use by the mother and (3) No enrollment in a drug rehabilitation program. The Family Court, Bronx County dismissed the petitions and an appeal was filed. The issue to be decided was whether prenatal conduct could form the basis of a finding of neglect, such that the petitioner had stated a valid cause of action.

The Stefanel court found that prenatal conduct could form the basis of a finding of neglect. The court held that the petitioners had "sufficiently alleged causes of action for neglect based on the mothers' admitted use of drugs during their pregnancies, the childrens' positive toxicology for cocaine at birth and the failure of the mothers to be enrolled in a drug rehabilitation program at the time the petitions were filed." The court asserted that a positive toxicology for cocaine in a newborn constituted "actual impairment" for the purpose of withstanding a motion to dismiss. Although the respondents averred that an isolated detrimental act committed during pregnancy could not constitute neglect, the court rejected that argument and noted that even a single act of misconduct can support a finding of neglect, citing In The Matter of Coleen "P".

The Stefanel court refuted the reasoning in Fletcher to the extent that an inability of showing the time and occurrence of drug use during pregnancy precludes a court from inferring continued and regular drug use. The court also went on to note that the petitioners were not seeking a finding of neglect with respect to the fetuses, but rather to the children born with a positive toxicology for cocaine. But despite the lip service paid to the notion of protecting children and not fetuses, the court's decision was one that held the mother accountable for her prenatal conduct.

The court found the respondent's right to privacy claims grounded in Roe to be unpersuasive, and argued strongly that abuse and neglect statutes must be applied to the unborn. The court quoted from a law review article saying:

It has been stated that "[t]he important state interests in preservation of life, the potentiality of life, and child welfare lend resolute support to the argument that child abuse and neglect statutes should include unborn children. In reality, this is the only way to give meaningful effect to those interests. An interest stripped of a method of enforcement is a feckless thing. Nowhere in law are significant state interests unaccompanied by a means of implementation. This is certainly true where the state seeks to prevent death or serious bodily injury. The only reasonable mechanism to implement state interests in the unborn is through existing abuse and neglect statutes. Since these statutes can be construed to include the unborn, protection of legitimate state interests calls for such an interpretation.... Doing so will nourish important state interests, and extend long overdue legal protection to the unborn."

The Stefanel court incorrectly relied upon Coleen P. in its decision. While Coleen P. does stand for the proposition that "If a single incident can constitute child abuse, a fortiori a single incident can constitute the lower standard encompassed in child neglect", the decision involved a mother's conduct towards her young children, the youngest being age three. Coleen P. had nothing to do with a mother's conduct towards her unborn children.

The Stefanel court quotes Myers, arguing that the only way to protect unborn children is to breathe a new construction into existing statutes. Yet the court says nothing about calling upon the legislature to draft new statutes aimed specifically at the problem of maternal substance abuse. Although there might be a delay while such a new law was passed, a new statute specifically addressing the problem would give prospective parents proper notice of the state's expectations. Such notice is conspicuously absent in Stefanel, Mark S. and other New York decisions which make the law on an ad hoc basis. As an added bonus, the publicity surrounding the passage of such a law might serve to inform more women about maternal substance abuse and about how to get better prenatal care.

B. Problems with the New York Law.

While some of the New York cases acknowledge the balance which must be struck in dealing with the problem, other cases ignore applicable statutes and practically apply an "I know it when I see it" standard in the neglect proceedings. In New York the traditional standard of proof under F.C.A. § 1012 has been brushed aside in favor of a lesser standard which looks to the toxicology of the child at birth - and not at the overall fitness of the parents. This myopic focus on the infants's positive toxicology for cocaine is misplaced especially since:

[a] positive toxicology test alone does not provide substantive information about the impairment of mother or child. drug tests do not measure frequency of drug use. They indicate only that a person has used a drug in the twenty-four to seventy-two hours preceding the test. To presume parental unfitness given these facts is probably unconstitutional, since the Supreme Court has overturned laws that relied on a presumption of unfitness to deprive parents of custody without a substantive inquiry into the parents' actual fitness. Moreover, drug tests are not always reliable. This means that some women will be erroneously identified while others will escape detection.

As of this writing New York has not amended the Family Court Act to specifically address the problem of maternal substance abuse. The state continues to handle the problem by stretching existing statutes to cover new situations. Clearly the drafters of Article 10 did not foresee the current crack epidemic, and therefore could not anticipate the application of F.C.A. § 1012 to the problem. The result of this statutory misapplication is evident in the cases just examined: some decisions insist that prenatal conduct alone can be the basis of a neglect finding while other decisions insist that parental fitness cannot be measured by prenatal conduct or toxicology tests.

C. Evolution and Analysis of The California Law.

In California petitions alleging parental neglect or dependency are brought under section 300 of the California Welfare and Institutions Code. For purposes of establishing jurisdiction over children born with a positive toxicology for illegal drugs, section 300(a) has been called upon the most. Section 300(a) reads in pertinent part that a minor comes within the jurisdiction of the juvenile court when:

The minor has suffered, or there is a substantial risk that the minor will suffer, serious physical harm inflicted nonaccidentally upon the minor by the minor's parent or guardian. For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the minor or the minor's siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm.

Our examination of California cases will show a gradual evolution in the weight which the courts place on the factor of drug abuse by the pregnant mother. In the first case, the substance abuse is but one of several factors evaluated by the court. In the second case, it is still one of several factors, but it seems to be increasing in importance. The court relies solely upon the drug use by the mother in the third case, and in the forth case the court relies chiefly upon the substance abuse alone to find jurisdiction, even though there are other relevant factors involved upon which the court could also base its decision.

One of the earlier California cases involving the issue of maternal substance abuse is In re Paula P. In that case, Paula's foster parents sought to adopt Paula and therefore petitioned for her to be declared free of parental control and custody - essentially a termination of parental rights, pursuant to section 232. The trial court considered several factors in granting the petition. First, Paula's mother was addicted to heroin at the time of Paula's birth. As a result Paula had to return to the hospital one week after her birth when she "suffered from convulsions and other symptoms resulting from her congenital heroin addiction." Second, the mother admitted to a continuing heroin addiction several weeks after Paula's birth, even to the point where she was actually selling heroin, as well as using it. Third, Paula's mother had shown a lack of sincerity in the drug rehabilitation programs in which she participated. Fourth, Paula had been neglected and cruelly treated by her parents in that they failed to provide proper "parental care and control and failed to provide a home for Paula." The petition was granted chiefly on the grounds of the parent's neglectful treatment of Paula after she was born and in allowing her "to be born addicted to heroin as a result of her mother's use of that substance."

Paula's mother appealed raising issues of vagueness and ambiguity in the law, challenging the evidence as insubstantial and challenging the standard of proof, that of clear and convincing evidence, used by the trial court. The Court of Appeal, Second District, Division 1, was unconvinced. It found no vagueness or ambiguity in the law and noted that the phrase "cruel and neglectful" contains "simple words with simple meanings." The court further found that the evidence adduced at the trial level was more than sufficient. As to the proper standard of proof, the court noted that a lesser standard than beyond a reasonable doubt is appropriate in a civil proceeding, where the focus lies on the best interests of the child.

In 1987 California again considered the impact of drug use by a pregnant woman within the scope of an action to terminate parental rights. The case, In re Solomon L., involved a woman who admitted to cocaine and heroin use before, during and after pregnancy. Her baby, Solomon, showed symptoms of drug withdrawal shortly after he was born. Solomon was removed from the care and custody of his natural mother and was placed in a foster home six days after his birth. Shortly thereafter his mother was found guilty of grand theft and was imprisoned. All efforts at drug rehabilitation failed, and the mother was facing a prison term of about three years at the time of the neglect hearing. Solomon eventually found a good home with his paternal aunt and uncle, and a petition was filed to terminate the parental rights of the natural mother.

The trial court looked at several factors in determining the issue of neglect and deciding to terminate the natural parent's rights. First, the court noted that the baby was born addicted to drugs. Second, the court frowned upon the mother's incarceration, which clearly impacted her ability to be an effective parent. Third, the mother's continuing drug addiction and her rejection of all available drug rehabilitation was also considered. Notably the court found pre-natal conduct as one of the major factors in determining neglect. The court said "neglect was shown by her use of drugs during pregnancy, and the child's withdrawal from drugs after birth and neglect in the early days of the child's life." Yet the court did not terminate the parental rights of the natural mother solely on the basis of the baby's condition at birth, but considered all the relevant factors in reaching its decision.

The California cases considered thus far have held maternal substance abuse to be but one of several factors to be considered in a proceeding for neglect, dependency or termination of parental rights.

However in the next case, In re Troy D, significantly more weight was placed on the sole factor of drug use by the mother. The Troy decision went further than any previous California decision in terms of holding a birth mother accountable for her prenatal conduct, and in declaring jurisdiction over children born with a positive toxicology for illegal drugs. Since the findings in Troy represent such a new direction for the California courts to take, our analysis of this case will go into substantially more depth.

Troy D., a baby boy, was born prematurely, and tested positive for the presence of amphetamines and opiates. Six days after his birth a dependency petition was filed on his behalf. The petition alleged that Troy was protected by section 300(a) of the California Welfare and Institutions code since "his mother used narcotics and dangerous drugs, to wit, cocaine and methamphetamine, to excess to the detriment of said minor, and the father was unable to protect said minor." The trial court decided that the best interests of the child would be served if Troy was removed from the custody of his mother and placed with his grandmother.

On appeal the natural mother presented three arguments, most importantly the contention that the trial court lacked jurisdiction over Troy. She argued that "even if there were sufficient admissible evidence to sustain the allegation that Troy was born under the influence of dangerous drugs, such fact would be an insufficient legal showing for the juvenile court to exercise jurisdiction." This argument appears to have merit, as the mother's prenatal conduct, and not her conduct after the birth of her son, brought about the drug influence about which the petition complains, and upon which the trial court asserts its jurisdiction.

The court of appeal pointed to section 355.1(a) and held that the juvenile court had jurisdiction solely because Troy was born under the influence of drugs. But there remain several flaws in the court's assertion of jurisdiction under section 335.1(a).

First, the statute addresses itself to "an injury, injuries, or detrimental condition sustained by a minor." Here, the so-called injury was clearly sustained by an unborn fetus, and not a minor. There is no evidence set forth in the court's opinion to indicate that the legislature intended for this law to apply to neglectful or unreasonable acts of the parent, guardian or custodian towards an unborn fetus. Additionally, research of the relevant statutes reveals no legislative history with respect to what is meant by the term "minor." Looking to the plain language of the statute does not give the impression that it was meant to apply to an unborn fetus.

Second, the statute contemplates injuries sustained by the minor. In cases of maternal substance abuse the nature of the injuries vary widely and are extremely difficult to predict. In some cases the damage to the fetus is severe, and the child is born with brain and nerve damage which physically, emotionally or developmentally cripple the child for life. In other cases the fetus is mildly affected and the child is born healthy, and leads a normal life. An accurate assessment of the damage or injury caused to the fetus requires a complete examination of the newborn with particular attention to the nervous system. A mere finding of drugs in the nervous system is not enough to establish damage or injury to the child - it is merely and indication that the mother ingested drugs within 24 to 72 hours of giving birth. A positive toxicology for illegal drugs is not enough to demonstrate the injury to the child necessary to apply section 355.1(a).

The natural mother argues that jurisdiction cannot be sustained "on the basis of the petition because it involves conduct with respect to a fetus, not with respect to a living child." The court disagrees with her argument, noting that "Troy is not a fetus but a living child born with dangerous drugs in his body because his mother used the drugs while pregnant with him. The petition was concerned with the protection of a living child, not with a fetus..." But the fact remains that the mother's prenatal conduct is what brought her into court. Her prenatal conduct affected the fetus, not her conduct after the birth of her son. The petition was filed due to the mother's prenatal conduct, and all the carefully worded judicial semantics set forth by the Troy court cannot change that fact.

In fact, the court practically confesses its desire to protect the unborn from dangerous drugs, irrespective of legal guidelines, in a strongly worded public policy statement contained within the opinion. The court noted that:

The severe problem of babies born under the influence of dangerous drugs due to their mother' use of such drugs during pregnancy has reached great proportions. It has been estimated that 11 percent of children born in United States hospitals are born having been exposed to dangerous drugs and are consequently at risk. To enable juvenile courts to protect drug-exposed infants and to compel parents to undergo drug rehabilitation therapy and to afford child protection services to the family, courts must be able to assert jurisdiction over infants born at risk because of prenatal exposure to dangerous drugs.

The court also said "... a living child must be afforded the protection of the juvenile court even though he is as risk because of his mother's actions before his birth." The inescapable conclusion is that the court is declaring jurisdiction over the unborn fetus, to provide protection, notwithstanding the court's rhetoric that the petition involves conduct with respect to a living child rather than a fetus.

The court next notes that "Since no California court has specifically answered the question of whether dependency jurisdiction may be assumed solely on the basis of an allegation that an infant is born under the influence of dangerous drugs" it would look to other jurisdictions for guidance on the issue. The court then cited In Matter of Baby X, a Michigan case which held that a court could "assert jurisdiction over a baby born with drug withdrawal symptoms caused by mother's prenatal drug addiction." The Baby X court reasoned that "Since prior treatment of one child can support neglect allegations regarding another child, ... prenatal treatment can be considered probative of a child's neglect as well." This incredible conclusion indicates that the Baby X court drew a parallel between a separate, living, older sibling and an unborn fetus. In drawing this parallel the Baby X court compares the treatment of the older sibling to an unborn fetus, and in so doing impliedly grants to the unborn rights formerly reserved to fully born living children. Yet there are more differences than similarities between an older sibling and an unborn fetus, despite the reasoning of the Baby X court. The obvious difference being that one can exist independently of the mother while the other cannot. Additionally the fetus is affected by nearly everything the mother does, from using cocaine to going for a morning jog around the block. A fully born child is not so easily affected by every aspect of the mother's life. Furthermore, most parents are generally aware that laws exist prohibiting child neglect.

In sharp contrast to a fully born child, a fetus is affected by acts which the mother performs without even considering it. The mother can drink alcohol, use cocaine or marijuana, smoke cigarettes, etc., and dramatically affect the fetus without even realizing it. The mother does not even have to actively do anything to adversely affect the fetus. She could be sitting passively in a smoke-filled room and be exposing her baby to the hazards of second-hand smoke without even knowing it. She could also be enjoying a rock concert indoors, where marijuana use is frequently the rule and not the exception, and get "contact high" from the smokey haze, while the fetus also feels the effects of the drug.

Even if the mother actively consumes drugs, she is unlikely to think of her actions as one of child abuse or neglect. While public awareness of more traditional forms of child neglect has increased dramatically, there is still little public awareness of laws protecting an unborn fetus from harm caused by the mother.

Despite these differences between parental conduct towards a fully born child and an unborn fetus, the Baby X court found prenatal neglect to be analogous to neglect of an older sibling and therefore probative of future child neglect, and the Troy court fully embraced these findings.

The most recent California case after Troy D. is In re Stephen W. Stephen W. was born with opiates in his system. Shortly after his birth he displayed symptoms of drug withdrawal including muscle tremors. He also had an unusually low birth weight and showed signs of retarded intrauterine growth. His mother admitted taking heroin the day before he was born and also admitted to being a heroin addict. Stephen was taken into temporary custody the day after he was born, and a dependency petition was filed by Butte County Child Protective Services (C.P.S.). Eventually "Stephen was placed with his paternal grandparents." The trial court received evidence that both parents were addicted to heroin, and it found "Stephen to be a dependent child of the juvenile court." Stephen's mother appealed.

On appeal, the natural mother presented a number of arguments, chiefly that the allegations set forth in the petition cite her prenatal conduct and therefore "cannot support a dependency petition under section 300." Mother argued that C.P.S. was attempting to create rights in the unborn fetus which are enforceable against her. The appeals court rejected her argument, directly relying on Troy D. The Stephen W. court totally and completely embraced Troy D., saying that "In re Troy D. is precisely on point." The opinion dedicates a substantial number of pages to setting forth the facts and reasoning of the

Troy D. court, and in so doing finds adequate grounds for jurisdiction over Stephen based upon his condition at birth.

Although Stephen's parents were clearly still addicted to heroin after the child was born, the court relied on Troy D. in finding that jurisdiction over the child need not rest on the danger posed to the child after birth, but may be based solely on the condition of the child at birth. The decision of the trial court was affirmed, and Stephen was declared a dependent child.

D. Problems with the California Law.

Even though the two states are on opposite sides of the country, California seems to suffer from the same problem as New York in terms of the way it handles dependency and/or neglect proceedings where maternal substance abuse is involved. Both states stretch the available statutes to cover areas never foreseen by the legislature. Both states construe existing statutes so that the natural mother in these cases becomes neglectful for acts which she performed before the birth of her child. And both states have clever judges, capable of devising apparently sound rationales for these decisions. In particular it is worth noting that both New York and California cases gave lip service to the notion of extending protection to a child born with illegal drugs in its system, while ultimately holding the birth mothers accountable for prenatal conduct. However, despite the ingenuity of the judges in these cases, both California and New York might find these cases easier to deal with if statutes specifically aimed at the problem of maternal substance abuse were drafted and passed by their respective legislatures. The advantages of having such legislation in place include providing guidance for the judiciary when new cases are heard, and providing notice and warning to mothers who may not otherwise be aware of the dangers and legal consequences of drug use while pregnant. The problems with the California and New York law are basically the same - there are no solid statutes dealing with the issue.

IV. Response of the State Legislatures.

While New York law makers have not responded to the problem, other states have taken legislative action. "Illinois has amended the Juvenile Court Act definition of 'neglected minor' to include infants born with controlled substances in their system, as have Indiana, Nevada, Florida and Oklahoma." In Delaware, House Bill No. 20 was enacted in 1991. The bill sets forth requirements that those who treat or advise pregnant women warn them of the dangers of substance abuse during pregnancy. Other states have passed criminal statutes aimed at deterring maternal substance abuse by finding birth mothers guilty of delivering controlled substances to a minor, even when the "delivery" takes place in utero or through the umbilical cord.

As of this writing, neither state has passed any legislation specifically geared toward maternal substance abuse within the framework of a dependency or neglect proceeding. However California has recognized the problem and has drawn up a plan to educate the public about the dangers of substance abuse. The plan calls for drug-awareness education starting in the elementary schools, and covers a wide range of groups including government, civic groups and private industry. The plan is composed mainly of three parts. Section 11757.51, legislative findings and declarations, section 11757.59, funds; pilot project; guidelines for selection of counties and section 11998.1, legislative intent; long-term five-year goals. A copy of the plan appears in the appendix.

V. Conclusion.

The severity of the crack epidemic cries out for an immediate solution. But the solution must be one which affords some measure of protection to unborn children while simultaneously respecting a woman's right to privacy and bodily integrity. The solution must also be one which requires a petitioner in a neglect proceeding to "plead and prove" impairment or imminent danger of impairment before a finding of neglect is made. This element is lacking in the cases presented from both states.

Currently states are taking a variety of approaches towards the mothers of drug-tainted babies. These approaches include criminal sanctions, neglect proceedings, and educational laws, such as Delaware's HB 20. Attempts to brand these women as criminals have been largely unsuccessful, despite the media circus created by such cases. Neglect proceedings are fraught with the difficulties already mentioned in the New York cases. An educational approach, such as that being undertaken by California, makes more sense. Punishing the women involved with jail sentences, or by neglect proceedings which can lead to the separation of families can not prevent damage to their children. In fact, such measures are taken only after a child has suffered drug-induced damage. By educating the public a state has a chance to prevent the damage from occurring, raise public awareness of the problem, and encourage better prenatal care for pregnant women. By making a commitment to educating these women, states can take the first effective step in protecting children from the horrors of maternal substance abuse. Additionally, an educational solution could accomplish the twin goals of protecting unborn children while simultaneously respecting a woman's right to privacy and bodily integrity.


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