### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0044- 22
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,

v. C.B., Defendant-Appellant, and T.B., Defendant.

___________________________ IN THE MATTER OF L.A.B., a minor.

___________________________

Submitted January 23, 2024

– Decided February 22, 2024 Before Judges Whipple, Mayer and Enright.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0044

- 22 On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FN- 13

- 0084

- 21.
Jos eph E. Krakora, Public Defender, attorney for appellant (Adrienne Marie Kalosieh, Assistant Deput y Public Defender, of counsel and on the briefs). Matthew J. Platkin, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicholas Joseph Dolinsky, Depu ty Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Todd S. Wilson, Designated Counsel, on the brief).
PER CURIAM Defendant C.B. appeals from the January 6, 2022 order finding she abused and neglected her infant son, L.A.B., by using opio ids during her pregnancy

— such that the infant suffered from withdrawal sympt oms after birth

— and the July 25, 2022 order terminating the l itigation and clearing the way for the Division of Child Pro tection and Permanency ( Division ) to proceed with terminating her parental rights. 1 C.B. argues the fact that medical personnel treated L.A.B. for withdrawal symptoms does not nec essarily mean the child had

1 L.A.B.'s father, T.B., is not involved in this appe al.3 A- 0044

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been exposed to opioids before birth and was experi encing withdrawal after delivery. A child's treatment for withdrawal symptoms does no t necessarily demonstrate the presence of Neonatal Abstinence Syn drome (NAS)

— the formal name for withdrawal

— but the medical indications leading to such treatme nt may provide competent evidence to support a diagnosis o f NAS. Here, there is sufficient credible evidence in the record to suppo rt a finding the child suffered "actual harm as a result of the mother's use of opi oids during pregnancy." We, therefore, affirm the Family Part judge's decisions for the reasons below.
I. We recite the relevant facts as gleaned from the r ecord. Defendant C.B. gave birth to her infant son, L.A.B., by cesarean s ection in January 2021. Shortly before the birth, C.B.'s urine tested positive f or opiates. Upon delivery, L.A.B. had Apgar scores of seven and nine at one and five minutes, respectively, but it became apparent that he may have aspirated m econium, 2 so he was transferred to the neonatal intensive care unit (NI CU) at Jersey Shore University

2 Meconium is a newborn's first bowel movement that the newborn can sometimes breathe in , or aspirate, during the birthing process. Meconi um aspiration can lead to lung irritation, respiratory distress, and potentially reduced oxygen absorption.4 A- 0044

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Medical Center (JSUMC) for specialized care for res piratory distress. Shortly after, L.A.B.'s urine drug screen came back negativ e, but, almost a week later , his meconium drug screen came back as presumptively positive for opiate(s) based on a biochemical test. The sample available was too sma ll, however, for the confirmatory test that could have identified th e kind of opiate present. The lab results noted an "[u]nconfirmed positive may be useful for medical
purposes [] but does not meet forensic standards." Meanwhile, C.B.'s mother

— who had custody of C.B.'s other two children, sin ce the Division terminated C.B.'s and the children's fath er's parental rights to them

— reported to the Division in early February that C.B . had given birth to
L.A.B. The Division began to investigate C.B. by interview ing the parents and getting reports from the clinicians and social work ers at both Riverview Medical Center and JSUMC. Upon admission to the NICU, L.A.B. was observed to be hypertonic and jittery, caus ing a concern of possible early signs of N AS . The child's doctor determined the nurses should begin following the Fi nnegan score protocol. The Finnegan score

— formally known as the Neonatal Abstinence
Score

— is a diagnostic guideline that helps clinicians ass ess whether a child is undergoing NAS se vere enough to require treatment. The Finnegan sco re5 A- 0044

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assesses twenty- one symptoms by assigning them point values, from one to five , depending on the severity of the symptom. If a sym ptom is not observed, then it is assigned a zero. The Finnegan score is the t otal arrived at by adding all twenty-one point-values together. Scores of seven and below are considered normal, while scores of eight and above are causes for concern. Under the standard protocol, a child under observation should be scored every four hours

. However, if the child receives an elevated score of above eight , the child should be assessed and scored every two hours. The child likely requires treatment with medication when the Finnegan score is eight or abov e for three consecutive scorings (e.g., 9-8-10) or when the average scores of three consecutive assessments is eight or higher (e.g., 9-7-9). At 11 a.m. on the day after his birth, L.A.B.'s med ical records showed his overnight Finnegan scores were 7/8/10/10. The doctors determined L.A.B. was presenting symptoms of NAS and prescribed methadone . L.A.B.'s medical records from the following day, show ed his Finnegan scores were 10/9/5/5/9/7/9/9. His methadone treatment continued, and his Finnegan scores generally trended down over the next two weeks. As his Finnegan scores decreased, his dose of methadone appropriately decr eased as well, until the treatment ceased i n mid-February.6 A- 0044

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In preparation for L.A.B.'s discharge, the Division initiated emergency removal of the child, and filed a complaint for eme rgent custody, care, and supervision of L.A.B. At a hearing, the judge order ed the emergent removal , grant ed the Division continued custody, care, and supervis ion of the child, and iss ued an order to show cause.
However , on the date of his scheduled discharge , L.A.B. exhibited increased irritability and poor feeding. Thus, the doctors declined to discharge
him and continued observation to determine whether to resume administering methadone. Over the next couple days, L.A.B.'s Fin negan scores were 3/6/4/5/5/6/8 and 10/5/10/7/7/7. L.A.B. received a low dose of methadone and was slowly weaned off after four days. After being stab le for two days, L.A.B. was discharged to the care of his maternal grandmot her. The court held numerous hearings concerning the par ents' compliance with court orders before the fact-finding hearing, scheduled to begin in June 2021. The fact-finding was adjourned twice, first to allow the mother and then the Division, to secure experts and reports. After the fact-finding hearing, the trial judge issued an order and decision on January 6, 2022, finding the Division "met their burden of proving by a preponderance of the evidence that baby7 A- 0044

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[L .A.B.] suffered a substantial risk of harm and actu al harm as a result of the mother's use of opioids during her pregnancy." The trial judge approved the Division's proposed pe rmanency order, and the Division filed a complaint for guardianship. A t a July 25, 2022 hearing, the trial court judge terminated the litigation, allowing the Division to proceed with a new action to terminate the parental rights of C. B. and the child's father. This appeal timely followed.
II. On appeal, C.B. argues the Family Part judge incorr ectly weighed factors in finding she had abused and neglected her son pur suant to N.J.S.A. 9:6-8.21(c) and the Division failed to carry its burden of proo f under that statute. We disagree. We review the factual findings and conclusions of a trial judge with "deference to the trial court's credibility determi nations and its 'feel of the case' based upon the opportunity of the judge to see and hear the witnesses." N.J. Div. Youth & Fam. Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (19 98)). We should likewise "defer to the trial court's assessment of expert ev aluations." N.J. Div. Youth & Fam. Servs. v. H.R., 431 N.J. Super. 212, 221 (App. Div. 2013) (citing In re8 A- 0044

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Guardianship of D.M.H., 161 N.J. 365, 382 (1999)). While a trial judge has the discretion to accept parts of a witness's testimony and reject other par ts , it is also within the ir discretion to accept or reject a witness's testimo ny in its entirety. See E&H Steel v. PSEG Fossil, LLC, 455 N.J. Super. 12, 29 (App. Div. 2018).
We examine such decisions for an abuse of that discre tion. See H.R., 431 N.J. Super. at 221. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference t o family court factfinding." Cesare, 154 N.J. at 413. This court will not disturb the trial judge's findings unless they are "so manifestly unsupported by or in consistent with the competent, relevant[,] and reasonably credible evid ence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted). On the other hand, a trial court's "interpretation of the law and the legal consequences that flow from established facts are n ot entitled to any special deference." N.J. Div. Youth & Fam. Servs. v. R.G. , 217 N.J. 527, 552-53 (2014) (quoting Manalapan Realty, L.P. v. Manalapan Twp. C omm., 140 N.J. 366, 378 (1995)).9 A- 0044

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New Jersey's child welfare laws strike a "balance between t wo competing interests: a parent's constitutionally protected ri ght to raise a child and maintain a relationship with that child, without undue inter ference by the State, and the State's parens patriae responsibility to protect th e welfare of children." Div. of Youth & Fam. Servs. v. A.L., 213 N.J. 1, 17

– 18 (2013) (internal quotations omitted). Title Nine, aims to "protect children 'w ho have had serious injury inflicted upon them' and make sure they are 'immedi ately safeguarded from further injury and possible death.'" Id. at 18 (qu oting N.J.S.A. 9:6-8.8(a)). "The law's 'paramount concern' is the 'safety of the chi ldren' and 'not the culpability of parental conduct.'" Ibid. (first quoting N.J.S.A. 9 :6-8.8(a), then quot ing G.S. v. N.J. Div. of Youth & Fam. Servs., 157 N.J. 161, 177 (1999)). With that focus in mind, Title Nine states that a child is abused or neglected when th at child's

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 or guardian, as herein defined, to exercise a minimum degree of care . . . in providing the child with pr oper supervision or guardianship, by unreasonably inflic ting or allowing to be inflicted harm, or substantial ri sk thereof, including the infliction of excessive corp oral punishment; or by any other acts of a similarly ser ious nature requiring the aid of the court; [N.J.S.A. 9:6-8.21(c).]10 A- 0044

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The New Jersey Supreme Court has repeatedly asserte d that the presence of withdrawal symptoms in a newborn can establish a ctual harm to the child. See A.L., 213 N.J. at 22

– 23; In re Guardianship of K.H.O., 161 N.J. 337, 349 (1999). A finding of abuse and neglect can be base d on the mother's substance abuse during pregnancy, when it results in the chil d's addiction and subsequent withdrawal symptoms after birth. See K.H.O., 161 N .J. at 350. The evidence of withdrawal symptoms "may come from any number of competent sources[,] including medical and hospital records, health care providers, caregivers, or qualified experts." A.L., 213 N.J. at 23. Here, the Family Part judge found the Division met its burden of proving, by a preponderance of the evidence, that L.A.B. suf fered a substantial risk of harm and actual harm as a result of the mother's op ioid use during her pregnancy. In reaching this decision, the judge reasoned "[t]h e mother has a history of substance abuse, the mother's urine was positive fo r opiates, the baby's meconium was presumptively positive for opiates and therefore the doctors and nurses at [ JS U MC ] evaluated baby [L.A.B.] for withdrawal." Further , she found "[i]n their experience, using the Finnegan scoring system, [clinicians] determined that baby [L.A.B.] was suffering from wi thdrawal and needed to be11 A- 0044

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administered methadone to ease his symptoms. Baby [L.A.B.] remained in the NICU for a little over three weeks." Although the presence of respiratory distress due to meconi um aspiratio n presented a potential alternative cause for the sym ptoms observed in L.A.B., such that they may not necessarily be attributable to withdrawal , we conclude the judge's findings were supported by sufficient c redible evidence in the record and should not be disturbed. During the hearing, the judge accorded greater cred ibility to the Division's expert than to C.B.'s expert. C.B. asserts the Fam ily Part judge erred in this credibility determination because the judge conclud ed C.B.'s expert was "clearly unaware of the extent of the mother's substance abu se" and, therefore, relied inappropriately on information relating to the moth er's behavior during pregnancy, as opposed to "the condition of the chil d at issue," as is required by Title Nine . Although the judge did consider this issue in as sessing the experts' credibility, the judge's analysis wa s appropriate

. The mother's history of drug

use was a relevant factor in determining whether using the Finnegan scores to assess L.A.B.'s condition was proper. C.B.'s exper t herself testified that "[e]ither [the mother's history of drug use] or if her urine is positive" should12 A- 0044

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indicate to a doctor to "at least suspect that ther e may be a [withdrawal] issue for the baby." C.B. also argues the Family Part judge erred by dis regarding C.B.' s expert' s assertion the Finnegan scale should not have been u sed to assess the severity of withdrawal symptoms in a child sufferin g from other maladies, such as respiratory distress due to meconium aspiration. C.B.'s expert opined other underlying health challenges could lead to elevated Fin negan scores, even if the child was not experiencing NAS. The expert suggest ed instead the symptoms could be attributable to other issues and combined in a way that mimicked NAS. We reject C.B.'s argument the Family Part judge 's decision to accord less weight to C.B.'s expert' s testimony and report shifted the burden to C.B. to show that L.A.B.'s symptoms were caused by other conditi ons. Instead, the record directly supports the judge's decision to accord th e Division's expert greater credibility than C.B.'s. Both experts relied on L. A.B.'s extensive medical records to prepare their reports, but the data reported by C. B.'s expert deviated from the data in L.A.B.'s records. In fact, C.B.'s expert omitted unfavorable data and inaccurately recorded other data such that it s upported her conclusion that L.A.B.'s symptoms may have had other causes besides NAS. Because of these13 A- 0044

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factual inaccuracies, the judge's determination tha t the Divis ion 's expert provided more credible evidence was not an abuse of discretion. C.B. also challenges the judge's reliance on the pr esumptively positive test result that indicated the presence of opiates in L. A.B.'s meconium, but the judge only referenced that test in considering the decision of "the doctors and nurses at [JSUMC to] evaluate[] baby [L.A.B.] for withdraw al." The judge did not rely on that test to conclude L.A.B. did, in fact, have opiates in his system. The judge only considered that test as another factor suppor ting the clinicians' decision to observe L.A.B. for potential signs of NAS . Although this test result was returned four days after L.A.B.'s healthcare pr oviders decided to observe the child for NAS , any perceived error resulting from the judge's cons ideration of this test is harmless. The record contained suf ficient other evidence to support the doctors and nurses' decision to assess L.A.B. for NAS. Based on our review, the underlying medical evidenc e upon which the healthcare providers relied to treat L.A.B. with me thadone, as well as other competent evidence contained in the record, support the judge's finding C.B. abuse d and neglect ed her son. Affirmed.