Substance Exposed Newborn (SEN) Cases

In January 2013, the Department of Children and Families (DCF) issued a policy change geared toward mandated reporters, community partners and other stakeholders.  The new protocol allowed DCF the option of screening out 51A reports involving Substance Exposed Newborns (SEN) if “the only reported condition is maternal use of methadone, buprenorphine (Subutex), buprenorphine with naloxone (Suboxone) or another prescribed and used medication (such as psychotropic and narcotic prescription medications) as substance abuse or medical treatment resulting in SEN” when certain conditions exist.  Those conditions include the verification that one of these three drugs were in fact part of substance abuse or medical treatment, were taken as authorized and there are no other concerns of child abuse and/or neglect.  In all other cases, such as a newborn testing positive for an opiod or marijuana, not only are mandated reporters (medical doctors and hospital staff) required to report a 51A, DCF is required to screen it in for a investigation.  Moreover, as long as the hospital concludes through appropriate testing that the newborn tested positive for an illicit substance, the 51A will be supported.

However, if a recent decision from the Fair Hearing Unit in one of my appeals is an example of betters days ahead, testing positive for marijuana does not necessarily mean the game is over.  Mothers should strongly consider appealing such a decision to the Fair Hearing Unit.  I will add, however, that until I actually see a written change in policy or examples of 51A’s not being supported in marijuana cases, I won’t go so far as to say that social workers and their supervisors won’t continue to routinely support such 51A’s.

In my case, the investigator testified that she was required to support the 51A simply because the newborn tested positive.  However, the hearing officer, in reversing the supported 51A, stated, “In light of the totality of evidence in this case, including testimony and new evidence provided at the Fair Hearing, I find the Department did not have reasonable cause to support the allegation of neglect of [the child] by the Appellant for the following reasons: a) Following [the child’s] birth, there were no concerns for the Appellant’s care of [the child], nor were there concerns for [the child’s] health and well-being; b) During the Assessment the Department determined that there was no further protective concern and the case was closed.” (Emphasis added.)

At the  hearing, I offered a plethora of evidence–medical records, articles, character letters and testimony from my client–that my client was not a habitual marijuana smoker and only smoked marijuana during her pregnancy to attempt to ameliorate the symptoms of a documented condition known as Hyperemesis Gravidarum  (HG) (characterized by severe nausea, vomiting, malnutrition and weight loss during pregnancy); required nine brief hospitalizations during her pregnancy; was prescribed medication that did not alleviate the symptoms of HG; and exacerbated anxiety during pregnancy. Moreover, the uncontroverted evidence was that my client’s child was born “well-developed” and “well-nourished” with no medical or developmental concerns.

The Takeaway: Supported 51A’s in SEN cases involving marijuana should be appealed.  You stand a reasonably good chance of getting a reversal if your baby is born healthy and well-developed despite a positive toxic screen for marijuana AND your case is presented in a meticulous fashion with the right evidence to support a reversal.  Please feel free to call me if you wish to discuss your case.

– JMI