New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch

Clio is the most widely-used, cloud-based practice management system in the world.

NH Bar's Litigation Guidelines
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
Member Login
Member Portal

Bar News - May 18, 2016

Child Welfare & Opioid Addiction - Part 1: Striking a Balance of Protection, Treatment

This two-part series was possible thanks to a 2016 Reporting Fellowship from the John Jay College of Criminal Justice and the Harry Frank Guggenheim Foundation.

Dr. Anne Johnston, a neonatologist, remembers a time when she had a lot more conflict with child protection workers.

When social services received a report that a pregnant woman was an opioid addict, or that a baby had been born with opioid withdrawal symptoms, a state investigator would come to the hospital and start asking the woman pointed questions. “I would think, ‘Why are you doing this? This mother seems very nice,’” Johnston recalls.

“That’s not a very educated way of looking at things,” she recognizes now. “We often see families at their best, and child protection workers don’t always see that.”

The opioid addiction crisis at times puts the roles of agencies and institutions charged with protecting the health and safety of children at odds and, as a result, collaboration to achieve shared goals is rare. As the New Hampshire Legislature considers a bill that some fear would have unintended consequences, national models, including one as nearby as Vermont, and research suggest more collaborative approaches can improve outcomes for children and families.

Prenatal exposure to opioids – and immediate safety concerns that lead to newborns being placed in protective custody – is one of the main aspects of parental opioid use that has affected the child welfare system across the country, and to an even greater extent, in New England.

In New Hampshire in 2012, 15 out of every 1,000 babies were diagnosed with neonatal abstinence syndrome (NAS), the clinical terms for the the tremors, sickness and shrill cries that characterize opioid withdrawal in newborns. Although more recent statistics are unavailable, that rate is believed to have increased dramatically in the past few years, as has the rate at which infants and toddlers are entering state protective custody in New Hampshire and nationwide.

Child welfare agencies like the NH Division of Children Youth and Families (DCYF) are mandated to keep children safe. Nationally, over the past few years there has been a shift in the way these agencies view reports of parents who are drug-dependent. In the past, intake workers would press callers for information that would show a child had been harmed; now, harm to the child is generally assumed to have taken place or to be imminent, given the combination of an opioid-addicted caretaker and a very young child. In New Hampshire, the proposed law, Senate Bill 515, would create that presumption in the courtroom as well.

The prevailing view among medical professionals is that the best way to protect babies is to make sure their mothers feel comfortable being straightforward about their drug abuse and can access addiction treatment. From that perspective, reporting all drug-exposed newborns to DCYF would risk the chance that pregnant women would hide their addictions. For DCYF, on the other hand, being informed and working with families to develop safe solutions, and taking children out of potentially dangerous environments, when necessary, is the only way to ensure child safety. “There have been concerns by medical professionals who don’t think they should have to report because the mother is using medications that are legally prescribed,” says DCYF Director Lorraine Bartlett. “It’s inconsistent across the state… You may have medical professionals who don’t think that baby is at risk because the parent is addressing their addiction by taking methadone.”

On average, about half of all newborns who have been exposed to opioids in the womb experience withdrawal symptoms that result in a diagnosis of NAS and require medical treatment in the form of gradually decreasing micro-doses of methadone or morphine. Last year, DCYF received 504 reports of children born drug-exposed, up 37 percent over 2014, but Bartlett believes the number of reports is still too low, as some newborns sent home with opioid-dependent parents have not survived.

In 2014 and 2015, there were three infant deaths in New Hampshire of babies two months old or younger in which unsafe sleep – bed-sharing with parents who were using opioids, either illicitly or as prescribed addiction treatment – was suspected as a possible cause, according to a review of records by the NH Medical Examiner’s Office. One of the babies had been diagnosed with NAS. The cause and manner of death in all three cases was undetermined, so it is unknown whether these deaths were preventable. “Babies that have been exposed to opiates are at increased risk statistically to sudden infant death, because of what the opiate exposure has done to the arousal system in the brain,” said Dr. Thomas Andrew, New Hampshire’s chief medical examiner.

These tragic deaths have amplified the tension between child welfare and the healthcare community. That tension has played out in New Hampshire over the past few months, in debates over SB 515, which would make it easier for an already overburdened DCYF to intervene in cases involving parental drug-dependence. Drafted in consultation with DCYF, the bill, as amended, would change current law so that when DCYF files a petition alleging neglect, evidence of a parent’s opioid abuse or dependence would create a presumption that the child’s health has suffered or is very likely to suffer serious impairment. A parent could rebut the presumption with evidence of compliance with treatment for their substance abuse disorder.

“It would effectively sort of shift the burden, so it would be up to the parent to say that my drug dependence, my heroin addiction, is not harmful to the children, and if they can make that showing, the court would not make a finding,” DCYF general counsel Byry Kennedy told the NH Senate Health and Human Services Committee at an early hearing on the bill. As originally drafted, the bill did not contain treatment compliance as a rebuttal, and would have also turned a NAS diagnosis into prima facie evidence of child harm or imminent harm. Kennedy did not respond to several calls and emails seeking comment.

Bartlett, the director of DCYF, emphasized that a report to DCYF of a baby diagnosed with NAS does not necessitate removal of the child. This is indicated clearly in the federal Child Abuse Prevention and Treatment Act (CAPTA) of 1974, which also required states to pass mandatory reporting provisions, in order to receive federal grants. In New Hampshire, the Child Protection Act requires any person who suspects a child has been neglected or abused to make a report to DCYF “when it is established that his health has suffered or is very likely to suffer serious impairment.” Heahlthcare officials maintain that no law requires medical professionals to report when women are taking prescribed medications or complying with addiction treatment.

John Kacavas, general counsel at Dartmouth-Hitchcock Medical Center (DHMC) in Lebanon, says SB 515, as amended by the House, would not affect reporting requirements among medical professionals. Unlike the original version of the bill, the current proposal would not change the definition of child neglect to include parental opioid abuse or dependence.

“With respect to the rebuttable presumption, that is invoked once a mandatory report is made and DCYF begins an investigation,” Kacavas explains.

Clinicians at DHMC have pioneered a new treatment protocol for NAS babies and their mothers that is now considered a national model. Using primarily non-pharmacological interventions, including engaging the mother in helping to assess her baby’s symptoms and frequent skin-to-skin contact in a quiet, dark environment, the methods have reduced both the need for methadone treatment among NAS babies and the staggering Medicaid costs associated with these cases.

Dr. Maria Padin, chief medical officer at DHMC, says pregnant women with substance abuse problems are generally open with health care providers about their addictions. “There is no population that has greater motivation to start opiate addiction treatment than pregnant women, primarily because they feel responsibility for that neonate,” she says. But getting even these high-risk, motivated women into treatment in New Hampshire is a challenge, due to the shortage of resources, she adds.

Pregnant women who are opioid-dependent risk additional harm to their unborn babies if they try to quit altogether on their own. If treatment can be initiated before 20 weeks of gestation, it is possible to assist the mother in getting off the drugs without any risk to the fetus, and the child is not born drug-exposed, Padin said. But this is only possible if the mother feels safe enough to seek prenatal care and tell her doctor about her drug problem.

Bartlett says she wishes hospital social workers who make reports to DCYF would explain to patients how DCYF works and that the agency’s goal is to keep families together when possible, but Padin says that goes beyond the job of the clinician. “That is not my role,” Padin said. “My role is to say, ‘We have concerns and, therefore, we are required to report.’”

Child welfare agencies have the reputation of swooping in and taking children away from their parents, but Bartlett says the main goal of DCYF is to work with families to keep children safe and with their families whenever possible. “We try very hard to engage the parent in talking about the developmental stage of the family and the developmental progress of the child,” she says. “We try to put together a plan of action. How do we change the story for the future? We certainly have had more than one case where a parent had a severe addiction, and maybe even was incarcerated as a result of that, and was reunified with their child.”

A parent with an active opioid addiction cannot always prioritize the needs of her child over her own need for another fix, putting the child at risk. But other parental diseases and health conditions can put children at risk, too. Does singling out opioid addiction, as SB 515 seeks to do, achieve the proper balance between protecting children and making women feel safe to come forward and seek treatment for their addictions? Not according to experts and leading researchers on these issues.

Hendrée Jones is a psychologist and professor who serves as executive director of UNC Horizons, a comprehensive treatment program for pregnant and parenting women with substance abuse disorders based at the University of North Carolina in Chapel Hill. “Legislation, while often well-intended, has incredible mitigating, negative consequences, because it doesn’t look at the other side of the equation, which is access to treatment,” Jones says. “If legislation must be passed, legislate and mandate increased access to treatment for women.”

Started more than 20 years ago in response to an increase in cocaine use, UNC Horizons provides intensive outpatient and trauma-informed treatment, parenting education, maternal-child psychotherapy, employment and education support and child care, along with 25 apartments where women and children can live while the mother participates in the program, which to date has helped more than 5,000 women. Women also receive aftercare support and become part of an alumni group once they move back into the community. Of the 50 opioid-addicted women in the program whose children had been removed from their care, all were successfully reunified, Jones said. The program uses a combination of federal and private funding.

Padin said DHMC clinicians are learning about the Horizons model and working on generating support for something similar in New Hampshire. “I’m hopeful that at some point we’ll be able to have some type of collaborative or coalition to improve lives for these families and these children, and to manage this issue,” she said, “but I am not sure this will come via the legislative process.”

The debate over SB 515 has highlighted the lack of communication and collaboration between medical professionals and child welfare workers in dealing with the complex issues surrounding parental opioid abuse and drug-exposed infants in New Hampshire. It might seem like differing perspectives and a tangle of state and federal legal requirements, along with confidentiality laws, would preclude multidisciplinary collaboration. But just over the Connecticut River in Vermont, based at the University of Vermont Medical Center in Burlington, the Children and Recovering Mothers (CHARM) Collaborative has been bringing together healthcare providers and child protection workers, and many other stakeholders, for more than 10 years.

Johnston, the neonatologist who once felt in conflict with child protection workers, was one of the founders of the CHARM Collaborative, a multidisciplinary group that is considered a national model for providing coordinated care and child protection in cases of pregnant women battling drug addiction. Women who participate in the program sign a single release form that allows representatives from clinical, child welfare, addiction treatment, law enforcement and other agencies to discuss their cases during pregnancy and up to 60 days after the birth.

A state law in Vermont provided for the development of child protection teams that could share client information under certain circumstances. Attorneys for the various state and private entities involved in CHARM spent two years figuring out a way to solve the legal challenges surrounding information-sharing. The result was a memorandum of understanding among the CHARM program partners that enables the provision of coordinated care to nearly 200 families in northern Vermont each year.

The process involves monthly, two-hour meetings with a facilitator, during which representatives from the various agencies discuss the issues and progress of as many as 40 families. Johnston, who specializes in care and treatment for this population, has followed up with 1,300 families who have been through the CHARM process. In addition, having worked closely with child protection workers for more than 15 years, Johnston says she now has a much deeper understanding and respect for their complex and, at times, dangerous work. She also has been able to educate those workers about the disease of addction. “It’s better to have them know about these patients than not know about them,” she said. “They’re there to offer input, and they may be involved with some of these families.”

Another collaborative model being tried around the country is Family Drug Court, a specialized civil court docket adapted from the criminal Drug Court model, of which there are now more than 360 in jurisdictions across the county. Experts say these collaborative approaches are more effective in improving outcomes and lowering costs, compared with more narrow legislative approaches, and Johnston believes these models also reduce the risk that mothers will be discouraged from seeking addiction treatment.

“Is there any other disease where you have to show compliance with treatment to child protection services? I can think of parents who are very brittle with diabetes, whose blood sugars are going up and down. We don’t do this with other diseases. I know the intentions are good, but this population has been marginalized so much that to treat them as if they chose to have this disease is crazy,” says Johnston. “The more we do to drive women away from seeking treatment, the less safe our children are going to be.”

On the individual level, attorneys who represent drug-addicted parents serve as the first line of protection for children, says Nancy Young, executive director of Children and Family Futures, a California-based nonprofit that contracts with the federal government to operate the National Center on Substance Abuse and Child Welfare.

“Parents’ attorneys are the ones who make it or break it for parents with substance abuse disorders. I say that all the time to attorneys – you’re it,” Young says. “We hear attorneys in the hallways telling clients, ‘Don’t do anything until you’re ordered.’ It’s absolutely the worst advice they could give to a parent who has an active substance abuse disorder… If you can get parents engaged in treatment right away, their long-term outcomes are better… These are the ethical challenges that members of the bar have to confront and face. Did you win the case if the parent and child are reunified and then there’s harm to that child? Who wins? Not the parent and not the child.”

As in Vermont, attorneys would play an essential part in helping to establish any potential collaborative approach to addressing these issues in New Hampshire. And although it is clear that substantial time and resources would be needed to develop such an approach, the savings in financial costs and lives could be significant.

As of this writing, SB 515 was to go to a vote of the full House on May 11. If it passed, it is on its way back to the full Senate, where the amended version could pass, die, or be sent to a committee of conference.

Editor’s note: The NH Senate has concurred with the House amendments to Senate Bill 515, passing the bill. The governor is expected to sign it in early June.

The second part of this series examines the impact of parental opioid addiction on the foster care system and the courts. Kristen Senz can be reached by email.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
© NH Bar Association Disclaimer