The Children’s Corner
der (ECO) to place the child in DCF custody. The petitions generally allege that
baby Doe was recently born and has tested positive for opiates and possibly other
drugs. The affidavit may include reference
to whether the infant is experiencing Neonatal Abstinence Syndrome. The affidavit
may describe the DCF investigator’s knowledge regarding history of mother’s drug involvement while pregnant, and usually describes the current medical status of the infant who is experiencing “NAS.” A companion affidavit from the treating medical
professionals may accompany the request
for an ECO.
Before analyzing the issue further, let’s
define the problem: what is an “NAS”
baby?¾ “When a baby has been exposed
to opioids during pregnancy, the infant
may experience withdrawal symptoms,
known as Neonatal Abstinence Syndrome
(NAS).”11 The symptoms of NAS can include a high-pitched cry, sweating, trembling, scratching of the skin, difficulty in
soothing, vomiting, and diarrhea. 12 It has
been noted that babies born with NAS suffer from “excruciating pain,”13 yet there is
little definitive research on whether NAS
harms the long-term health or developmental outcomes of the infant.14 What the
judge is told in the affidavit supporting the
ECO is essentially that mother is known to
be addicted to opiates, and within a matter
of hours after giving birth, her baby is beginning to experience withdrawal.
Issues Arising in the Emergency
Care Order Application
At the time of this writing, the standard for issuing an ECO is whether “continued residence in the home is contrary
to the child’s welfare.”15 Without more information, is the allegation of the birth of
an NAS baby, standing alone, sufficient
to support the issuance of an emergency
care order granting custody to the state
on a CHINS petition? Probably not. Why?
Simply because, without knowing more
about the history of mother’s engagement in MAT while pregnant, a judge has
no way of knowing if the mother has taken the recommended and necessary steps,
while pregnant, to maximize the chances
that her baby will be born safely.16 NAS is
an expected outcome for a baby born to
a mother who is adhering to treatment
in conjunction with her OB-GYN and her
methadone (or Buprenorphine) clinical provider. NAS is a treatable and manageable
medical condition.17 Of course, NAS is also
a likely outcome for a baby born to a mother who is not MAT compliant. Accordingly, the extent of mother’s compliance with
MAT is a critical piece of information the
judge should have when presented with
the ECO request.
34
What additional information should be
provided to the judge on an ECO request
for an opiate involved infant? Because
mother is suffering from a chronic, relapsing disease, and because there is at least a
risk that baby may have been exposed to
other drugs, and/or alcohol, in utero, in my
view, the judge should be made aware of
at least the following fundamental information before deciding what emergency care
order should issue:
1. What other substances has the baby
and mother tested positive for?
What is the overall health of the infant, and what is the state of mother’s overall medical health? Is mother capable of providing care for her
baby? NAS babies should have a stable, sensitive, and attuned caretaker to promote the infant’s regulatory
capacity. Recovery from NAS can be
promoted by correct interpretation
of and response to the dysregulation
experienced by a NAS baby. Maternal substance abuse can, of course,
influence her responses to her newborn’s cues.18
2. What is mother’s history of compliance with pre-natal MAT and general
obstetric care during her pregnancy?
Is the baby