Vermont Bar Journal, Vol. 40, No. 2 Winter 2016, Volume 41, No. 4 | Page 34

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