The Children’s Corner
38
scribed medication during the last trimester of her pregnancy;
• A newborn has a positive toxicology
screen for illegal substances or prescription medication not prescribed to the patient or administered by the physician;
• A newborn has been deemed by a medical professional to have NAS through NAS
scoring as the result of maternal use of illegal substances or non-prescribed prescription medication;
• A newborn has been deemed by a medical professional to have Fetal Alcohol
Spectrum disorder.
See note 11. As might be expected, formal collaborative efforts similar to the CHARM and
BAMBI programs do not exist uniformly across
the state.
11
http://www.ncsacw.samhsa.gov/tutorials/Tutorial.aspx?ID+1262. NAS occurs with notable
variability in opioid exposed infants, anywhere
from 55-94% of exposed infants exhibiting NAS
symptoms. Medication is required in about half
of the cases. The timing of onset of NAS is related to the characteristics of the drug used
by mother, and the timing of her last use. Sadly, most opioid exposed babies are exposed to
multiple other substances, including but not limited to cigarettes and alcohol. This information
is excerpted from a presentation given by Dr.
Nancy Young, Sally Borden, and Karen Shea, entitled Opioid Use in Pregnancy: A Community’s
Approach, the Children and Recovering Mothers (CHARM) Collaborative, available from the
National Center on Substance Abuse and Child
Welfare, http://www.cffutures.org/files/webinarhandouts/CHARM%20Webinar%20-%20Finals_0.pdf. Data as to NAS used in that presentation was retrieved from https://www.nlm.nih.
gov/ medlineplus/ency/article/007313.htm.
12
Id.
13
Erin Kampschmidt, Note: Prosecuting Women for Drug Use During Pregnancy: The Criminal
Justice System Should Step Out and the Affordable Care Act Should Step Up, 25 Health Matrix
487, 495 (2015).
14
Id. (footnotes omitted). Beyond the scope of
this article are the numerous concerns with existing studies of the topic, given that disproportionate numbers of study participants are from
poor and minority groups, which may represent
other reasons for infant health problems, such
as poor nutrition for the pregnant mother, and
whether the women have had access to quality
health care while pregnant.
15
33 V.S.A. §5305(a).
16
See generally, Vermont Guidelines for Medication Assisted Treatment (MAT) For Pregnant
Women, published by the Vermont Department
of Health, Division of Alcohol and Substance
Abuse Programs, in collaboration with the Vermont Department of Health Access. http://
www.uvm.edu/medicine/
vchip/documents/
VCHIP_4MAT_GUIDELINES.pdfv. The guidelines
also note that if a pregnant woman is non-adherent to treatment, “Communication with the
obstetrician, pediatrician, social work team at
the planned hospital of delivery and the Department of Children and Families (DCF) should occur promptly.” Id. at 6.
17
Id.
18
Martha Velez & Lauren M. Jansson, The Opioid Dependent Mother and Newborn Dyad:
Nonpharmacologic Care, 2 J. Addiction Med 113
(2008).
19
See supra note 7, at 37: “[A] treatment program establishes and implements policies and
procedures, including informed consent, to ensure appropriate follow up and primary care for
the new mother and well-baby care for the infant. Informed consent refers to the patient’s
agreement to receive treatment as well as agree-
ment to release information to and obtain information from pertinent health care providers.”
20
See In re M.M. and C.M., No 2015-144, decided on October 2, 2015, a case that involved
the appeal of a CHINS merits determination that
was, at least in part, based on a baby born NAS
whose mother had been engaged in MAT very
late in her pregnancy. At the temporary care
hearing, the parties agreed to a conditional custody order to mother. Notably, it took six months
from the TCH to schedule a merits hearing.
21
Up to this point, we have only been addressing mother. If mother is married, there is a presumption of paternity, and her husband is a party to the case. In my experience, the far greater number of cases involves mothers who are
not married. The question of paternity, and the
award of custody to a putative father who has
not been biologically or legally determined to
be the father of the child, can be fraught with
many additional problems at the temporary care
and merits stages, again, issues beyond the
scope of this article. The court should always be
informed about any concerns with respect to domestic violence.
22
Prenatal Substance Use, supra note 8, at 1.
23
“Cigarette smoking is the leading preventable cause of pregnancy-related morbidity and
mortality, and alcohol is the leading preventable
cause of developmental and intellectual disabilities. Id at 2, footnotes omitted.
https://ncsacw.samhsa.gov/userfiles/files/
Mod2-EffectsSubstances-2.pdf.
25
33 V.S.A. §5308 (a) (1).
26
Jansson, supra note 18.
27
2015 VT 144, at ¶¶ 23-24.
28
Although clearly she had been in MAT treatment for the last month of her pregnancy. She
had been in and out و