by Hon. Nancy Corsones
THE CHILDREN’S CORNER
How Should Courts Respond to the
Issues of Opiate Dependent Newborns?
Finding Manageable Solutions in Agonizing Cases.
Introduction:
“Vermont, We Have a Problem”
The opiate crisis in Vermont is a growing, complex problem that impacts all aspects of our judicial system. In the family
division particularly, trial courts are constantly called upon to respond to very challenging cases involving pregnant, addicted
mothers, and their babies who are born dependent on opiates and other illicit drugs.
And make no mistake about it... Vermont,
as well as the rest of the country, has a very
big problem. Nearly one in five women in
the United States now take an opioid medication at some point during their pregnancy, both by prescription and illicit opioids,
which has contributed to a tripling of the
rate of Neo-Natal Abstinence Syndrome
(NAS) over the past decade.1 According
to the Kid’s Inpatient Database (a national sample of hospital discharges), in 2009,
the average rate of opioid exposed babies
born across the United States was 3.4 infants per 1,000 hospital deliveries. In 2009,
the Vermont rate of opioid exposed babies
was 22 infants per 1,000 deliveries, seven
times higher than the national average.
And, within four years, by 2013, the Vermont rate had more than doubled, to 45.8
opioid exposed infants per 1,000 births of
Vermont residents at Vermont hospitals. 2
And, to my great dismay, this statistic from
2014: “Rutland also has the highest rate of
opiate-addicted pregnant women in the
United States.”3 In Rutland, in 2013, almost
6.5% of pregnant women aged fifteen to
fourty-four used illicit drugs while pregnant.4
CHINS petitions involving opioid exposed babies raise profoundly troubling issues for those who are legally and medically trained, for the addict and her family, and
for the public as well. Combining the emotionally challenging nature of these cases
with the sheer volume of filings renders
the development of a clear understanding
of the problem and the implementation of
safe and supportive responses a difficult
task, at best, for the judiciary. There are debates across our nation about what is the
best family court response to the issues involving the birth of drug-exposed babies.
Positions range from the expression of
public dismay and sometimes outright anwww.vtbar.org
ger at pregnant women who “poison” their
fetus in utero by using drugs; to medically
irrefutable concerns regarding the dangers
to the woman and her fetus if she attempts
to stop using opiates during her pregnancy5; to the policy admonitions directed to
family courts that they shouldn’t react to
the crises of opiate-dependent babies in
ways that might deter other pregnant addicts from engaging in prenatal treatment.
Somewhere in the gamut of these divergent positions, the family division judge
must respond immediately to the urgent
health and safety concerns of each opioidinvolved newborn with cogent, clear, and
compassionate answers to these complex,
competing concerns, most often in a “crisis” environment. Cases of opioid-dependent newborns present all of these issues
in one complicated package.6 In this article I attempt to set forth a clear, thorough
model with which the juvenile court judge
could approach and successfully respond
to these cases at the temporary care and
merits stages of child welfare proceedings.
Laws, Definitions,
State Policies, and Protocols
The primary federal legislation addressing newborn abuse and neglect issues is
the Child Abuse Prevention and Treatment
Act (CAPTA), originally enacted in 1974
and last reauthorized in 2010. CAPTA mandates that healthcare providers involved in
the delivery and care of infants notify state
child welfare agencies of any newborns
prenatally exposed to drugs. Although individual states have latitude in their interpretation and implementation of the federal law, most states mandate notification
from a healthcare provider that a newborn has been born with opiates in their
system to the state child welfare agency,
even if the mother was prescribed the opioid in the context of Medication Assisted
Treatment [MAT].7 The child welfare agency should then perform a preliminary safety evaluation, and develop a safety plan.8
Dependent on the outcome of the evaluation, a CHINS petition may be filed. Vermont DCF focuses its screening policy on
the acceptance of reports of prenatal exposure to illicit or non-medical use of prescribed medication.
THE VERMONT BAR JOURNAL • WINTER 2016
The Vermont Guidelines for MAT for
Pregnant Women tell PU