RECORD IMPOUNDED 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0421-22

NEW JERSEY DIVISION 

OF CHILD PROTECTION 

AND PERMANENCY, 

 Plaintiff-Respondent, 

v.

K.S., 

 Defendant-Appellant, 

and 

M.O. and V.M., 

Defendants. 

________________________ 

IN THE MATTER OF M.S., 

M.M. and T.M., minors. 

________________________ 

Argued April 22, 2024 — Decided May 2, 2024 

Before Judges Sabatino, Mawla, and Marczyk. 

NOT FOR PUBLICATION WITHOUT THE 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 parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-0421-22

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Hudson County, 

Docket No. FN-09-0152-20.

Laura M. Kalik, Designated Counsel, argued the cause 

for appellant (Jennifer Nicole Sellitti, Public Defender, 

attorney; Laura M. Kalik, on the briefs).

Michelle J. McBrian, Deputy Attorney General, argued 

the cause for respondent (Matthew J. Platkin, Attorney 

General, attorney; Janet Greenberg Cohen, Assistant

Attorney General, of counsel; Michelle J. McBrian, on 

the brief). 

David Ben Valentin, Assistant Deputy Public Defender, 

argued the cause for minors (Jennifer Nicole Sellitti, 

Public Defender, Law Guardian, attorney; Meredith 

Alexis Pollock, Deputy Public Defender, of counsel;

David Ben Valentin, of counsel and on the brief). 

PER CURIAM 

In this Title 9 case brought by the Division of Child Permanency and 

Protection ("the Division"), defendant K.S. ("the mother") appeals from the 

Family Part's June 14, 2022 order and associated oral decision. The trial court 

found the mother had abused her infant son T.M. ("Tyler")1in violation of

N.J.S.A. 9:6-8.21(c)(4)(b), through her misuse of not-currently-prescribed pain 

1

 We use pseudonyms and abbreviations to maintain confidentiality. R. 1:38-

3(d)(12). 
3 A-0421-22

killers while she was pregnant with Tyler, which caused his premature birth and 

neonatal withdrawal symptoms ("NAS"). We affirm. 

The pertinent facts were developed in depth at an extensive fact-finding 

hearing conducted before Judge Margaret M. Marley over nine intermittent days 

from March to May 2022. The Division presented testimony from numerous 

fact witnesses, as well as expert testimony from Tyler's treating physician. The

mother testified in her own defense and presented competing testimony from a 

retired physician with expertise in NAS. V.M., Tyler's father, was not charged 

and no findings of abuse or neglect were made against him. 

Tyler was born prematurely at thirty-five weeks in August 2019 at the

Jersey City Medical Center. A toxicology analysis revealed that he had 

amphetamines and benzodiazepines in his urine, although amphetamines were 

not detected in his first stool (medically referred to as his meconium) and there 

was a "quantity insufficient" in his stool to reveal benzodiazepines. At three 

days of life, Tyler began suffering from withdrawal symptoms, including 

tremors and extreme irritability. He was diagnosed with NAS and treated for 

withdrawal symptoms at two successive hospitals before being discharged to his

parents. Meanwhile, the mother also tested positive for amphetamines and 

benzodiazepines. 
4 A-0421-22

The Division's theme at trial was that during her pregnancy, the mother 

misused pain killers that had been prescribed for her in the past, but which were 

no longer currently prescribed, along with other non-prescribed drugs. The 

Division contended the mother knew from a previous pregnancy that it would

be harmful to the infant in utero for her to continue to use the drugs. 

The mother contended that the drugs had all been duly prescribed to her 

for back pain stemming from when she was a teenager, and that her doctors 

allegedly had not restricted her usage of them during her pregnancy. The mother 

admitted in a substance abuse evaluation that during her pregnancy she had 

taken oxycodone four times a day and morphine twice per day. Her last 

prescription for those drugs was filled in December 2018, when she received 

120 oxycodone pills and 30 morphine pills. 

The record contains no evidence that oxycodone or morphine was 

prescribed for the mother by any physician who was aware she was pregnant 

with Tyler. The record does show that an internist prescribed Tramadol, an

opiate, to her in May 2019, but his medical records and testimony do not reflect 

he was made aware that she was pregnant. 

The mother also disputed that her drug usage had caused Tyler any harm. 

Through her expert, who never examined her or Tyler, the mother hypothesized 
5 A-0421-22

other possible reasons for Tyler's condition, none of which the trial court found 

persuasive. She also stressed that the amphetamines and benzodiazepines had 

not been detected in Tyler's meconium. 

At the hearing's conclusion, the trial court concluded the mother had 

abused Tyler within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b). In her 

comprehensive oral opinion, the judge found the Division's witnesses, including 

its expert, more credible than the defense witnesses. Among other things, the

judge noted the mother's inconsistent accounts of key events, such as when she

first knew she was expecting a child and first told doctors she was pregnant. 

In her written order, the judge summarized her conclusions as follows: 

For all the reasons stated on the record, [the c]ourt finds 

that [the mother] failed to exercise a minimum degree 

of care pursuant to N.J.S.A. 9:6-8.21(c)(4)(b) by

unreasonably inflicting or allowing to be inflicted 

harm, or substantial risk thereof, specifically, by failing 

to remediate her substance abuse issues, ingesting illicit 

substances while pregnant with [Tyler], causing the

child to test positive for substances, suffer withdrawal 

symptoms, and require continuing medical care thereby 

placing the child at substantial risk of harm. 

On appeal, the mother argues: (1) there was insufficient evidence to

support the trial court's legal conclusion that she abused or neglected Tyler by

using prescription medication during pregnancy; (2) the court improperly shifted 

to her the burden to prove the cause of her back pain and that she did not use
6 A-0421-22

illicit medications; (3) the Division failed to show Tyler suffered from NAS, as

opposed to other conditions resulting from prematurity; and (4) the court abused 

its discretion by allowing the Division's testifying expert to provide an alleged 

net opinion critical of the mother's expert that was beyond the scope of his

medical records. The Law Guardian joins with the Division in opposing the

appeal. 

It is well settled that the scope of appellate review in this non-jury Title 9 

setting is narrow. Appellate review of the Family Part's abuse or neglect finding 

is limited. N.J. Div. of Youth & Fam. Servs. v. S.H., 439 N.J. Super. 137, 144 

(App. Div. 2015) (citing Cesare v. Cesare, 154 N.J. 394, 411 (1998)). The court 

must determine whether the decision "is supported by '"substantial and credible 

evidence" on the record.'" N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 

420, 448 (2012) (quoting N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 

261, 279 (2007)). 

"Because of the family courts' special jurisdiction and expertise in family 

matters, appellate courts should accord deference to family court factfinding." 

Cesare, 154 N.J. at 413; see also N.J. Div. of Youth & Family Servs. v. M.C.

III, 201 N.J. 328, 343 (2010). In that vein, appellate courts should "defer to the

factual findings of the trial court because it has the opportunity to make first-
7 A-0421-22

hand credibility judgments about the witnesses who appear on the stand; it has 

a 'feel of the case' that can never be realized by a review of the cold record." 

N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting 

M.M., 189 N.J. at 261). A family court's decision should not be overturned 

unless it went "so 'wide of the mark'" that reversal is needed "to correct an 

injustice." F.M., 211 N.J. at 448 (quoting N.J. Div. of Youth & Fam. Servs. v. 

G.L., 191 N.J. 596, 605 (2007)). 

Substantively, "Title 9 controls the adjudication of abuse and neglect 

cases." M.C. III, 201 N.J. at 343 (citing N.J.S.A. 9:6-8.21 to -8.73). "The focus 

of Title 9 'is not the "culpability of parental conduct" but rather "the protection 

of children."'" N.J. Div. of Child Prot. & Permanency v. A.B., 231 N.J. 354, 

368 (2017) (quoting Dep't of Child. & Fams., Div. of Child Prot. & Permanency 

v. E.D.-O., 223 N.J. 166, 178 (2015)). 

The Division "must prove that the child is 'abused or neglected' by a 

preponderance of the evidence, and only through the admission of 'competent, 

material and relevant evidence.'" N.J. Div. of Youth & Fam. Servs. v. P.W.R., 

205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). Each case of alleged 

abuse is "generally fact sensitive." Id. at 33. The proofs must be evaluated 

based on the totality of the circumstances. Id. at 39. 
8 A-0421-22

Title 9 defines an "abused or neglected child" as one under the age of 

eighteen whose 

physical, mental, or emotional condition has been 

impaired or is in imminent danger of becoming 

impaired as the result of the failure of [their] parent or 

guardian . . . 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, or (b) in providing the 

child with proper supervision or guardianship, by 

unreasonably inflicting or allowing to be inflicted

harm, or substantial risk thereof, including the 

infliction of excessive corporal punishment. 

[N.J.S.A. 9:6-8.21(c)(4).] 

The "minimum degree of care" element in subsection (c)(4) reflects "the 

intermediary position between simple negligence and the intentional infliction 

of harm." A.B., 231 N.J. at 369 (citing G.S. v. Dep't of Hum. Servs., Div. of 

Youth & Fam. Servs., 157 N.J. 161, 179 (1999)). Upon considering the totality 

of the circumstances and assessing each case on its facts, the court must 

determine whether the parent or guardian "fail[ed] to exercise a minimum degree 

of care when [they are] aware of the dangers inherent in a situation and fail[]

adequately to supervise the child or recklessly creates a risk of serious injury to 

that child." Ibid. 
9 A-0421-22

Applying these principles, we affirm the trial court's determination of the 

mother's parental neglect, substantially for the sound reasons expressed in Judge 

Marley's comprehensive oral opinion. We elaborate on only a few of the points 

raised by the mother. 

First, the record contains ample credible evidence that the mother abused 

(or, alternatively, neglected) Tyler by ingesting not-currently-prescribed 

painkillers during her pregnancy. There is sufficient evidence that her misuse 

of those drugs was a causal factor in Tyler's NAS condition at his premature 

birth, which resulted in him being hospitalized nearly two months before he was 

discharged. "If an expectant mother's drug use causes actual harm to the 

physical, mental, or emotional condition of a newborn child, a finding of abuse 

or neglect is appropriate." N.J. Div. of Youth & Fam. Servs. v. A.L., 213 N.J. 

1, 8 (2013). 

Here, as we noted, the trial court found the Division's testifying expert 

more credible than the mother's expert on these issues of drug misuse and 

causation, particularly because the latter relied on and accepted unreliable 

information the mother conveyed to her. When qualified experts present 

opposing opinions on disputed issues, the trier of fact may accept the testimony 

or opinion of one expert and reject the other. Angel v. Rand Express Lines, Inc., 
10 A-0421-22

66 N.J. Super. 77, 85-86 (App. Div. 1961). This principle flows out of the wellknown more general proposition that jurors, or (as here) a judge in a bench trial, 

have the best "opportunity to hear and see the witnesses and to get a 'feel' for 

the case that the reviewing court [cannot] enjoy." Twp. of W. Windsor v. 

Nierenberg, 150 N.J. 111, 132 (1997). 

The court did not shift the burden of proof to the mother as the defendant 

in this case. It clearly determined that the Division had proven the elements of 

abuse or neglect under Title 9 by a preponderance of the evidence. 

The mother argues that the Supreme Court's opinion in New Jersey 

Division of Child Protection & Permanency v. Y.N., 220 N.J. 165 (2014), 

supports reversal of the trial court's finding here. Y.N. involved a pregnant 

woman who entered a methadone maintenance program for her opioid addiction, 

and whose child was born with severe withdrawal symptoms requiring two 

months of hospitalization. Id. at 168. The Court ruled that "a finding of abuse 

or neglect [could] not 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 

ha[d] made full disclosure." Id. at 185-86 (emphasis added). 
11 A-0421-22

The situation here is not comparable. The mother's use of oxycodone, 

morphine, amphetamines, and other substances during her pregnancy was 

unjustified. In Y.N., the mother was being prescribed methadone to help her 

detoxify from opioids that could have more significantly harmed her child. 220 

N.J. at 184. The mother in Y.N. "followed the advice of a medical professional" 

in entering the "methadone maintenance program." Ibid. In the present case, 

the mother did nothing of the sort. The mother acknowledged the prescriptions 

for those medications were not current, and she was no longer being seen by the 

doctors who had prescribed the medications to her. The trial judge reasonably 

found the mother's doctors credible in maintaining they were not aware of this 

medication use during the mother's pregnancy and would have told her to stop 

its use if they had known. 

 The trial court appropriately noted the mother's acknowledgment that she 

knew Tyler would likely suffer from withdrawal because she was taking opioids. 

The trial court did not misuse this acknowledgment, as the mother contends. 

The court considered it in conjunction with other relevant evidence, including 

the mother's conscious decision to reduce her dosages to lower the medications' 

potential harmful effects—without current physician guidance. By the time of 

Tyler's birth, it had been eight months since she had a prescription for either the 
12 A-0421-22

oxycodone or the morphine. Y.N. is simply inapposite. 

Another issue warranting comment is the mother's claim that the trial court 

abused its evidentiary discretion in allowing the Division's expert to include in 

his testimony criticisms of the mother's expert, without having generated an 

expert report expressing those criticisms. This claim fails for several reasons. 

For one thing, the pretrial order entered with the participation of all counsel did 

not require the parties' experts to generate and exchange expert reports before 

trial. The order only required the disclosure of medical "records" on which the 

experts would rely, not narrative reports. 

Additionally, as a treating physician of Tyler (unlike the defense expert 

who was retained for litigation and who had not treated Tyler or his mother), the 

Division's expert has the latitude, within the court's discretion, to present 

opinions at trial arising from his treatment knowledge, unless that treater's 

reports are requested by opposing counsel in discovery. See, e.g., Delvecchio 

v. Twp. of Bridgewater, 224 N.J. 559, 582 (2016). Trial courts "have discretion 

to preclude an expert from testifying to opinions not contained in [an expert] 

report or in any other discovery material." Anderson v. A.J. Freidman Supply 

Co., 416 N.J. Super. 46, 72-73 (App. Div. 2010) (citing Ratner v. Gen. Motors 

Corp., 241 N.J. Super. 197, 202 (App. Div. 1990)). The "requirements [for the 
13 A-0421-22

admission of expert testimony] are construed 'liberally' in favor of admitting 

expert testimony." State v. Granskie, 433 N.J. Super. 44, 48 (App. Div. 2013) 

(quoting State v. Jenewicz, 193 N.J. 440, 454 (2008)). 

 Lastly, we reject the mother's claim that testimony from the Division's 

expert comprised inadmissible "net opinion." We are satisfied the expert 

sufficiently explained the "why and wherefore" underlying his opinions about 

both the mother's misuse of painkiller medications during her pregnancy and the 

causation of harm to her child. Townsend v. Pierre, 221 N.J. 36, 54 (2015). 

 All other points raised by the mother on appeal lack sufficient merit to 

warrant discussion. R. 2:11-3(e)(1)(E). 

 Affirmed.