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The common issue arising in all of the following cases


The common issue arising in all of the following cases concerns the constitutionality of the new article as it affects the presumptively mandated removal of custody of children from a parent who considered being addicted to narcotics.

In one case in Queens involving an addiction issue, a mother indicated in the records of the hospital that she had injected 10 bags of heroin daily into her blood stream for six years and that she had administered a dose to herself four hours before she delivered her baby. The attending doctor testified that her baby was born normally, without apparent symptoms or birth injury.

Evidently 24 hours after birth, the baby began to show the unmistakable narcotic withdrawal symptoms consisting of pre-convulsive tremors, hyperactivity, incessant crying, and ravenousness with alternating vomiting. Illnesses with partially similar symptoms were ruled out. Sedatives, dark and quiet environment were required for seven days before the child became physically well. Without careful therapy, the child might have suffered convulsions or even death. To give rise to such symptoms, the mother must have been regularly using large quantities of heroin for considerable time before her confinement. In addition, the placenta permits ready transfer of heroin from mother to fetus. If the mother injected heroin not habitually but only shortly before child’s birth, massive doses may have killed her and the new-born child or the baby would have been sedated instead of hyperactive and suffering withdrawal. Only high tolerance for both the mother and baby would cause the medically observed course of events found.

In another case, in Staten Island, the evidence was most instructive of all as to the dangers encountered by babies born having withdrawal symptoms. The baby had morbid tremors together with symptoms of hyperactivity about two hours after birth. The mother of the baby had her last heroin injection six to eight hours before the symptoms appeared. After one day, the baby showed symptoms with excessive crying, compulsive thumb sucking, vomiting and diarrhea. The remedy for those conditions was administered for one week with little improvement. In this case, the baby did not improve for a week and consequently a sedative was prescribed, gradually controlling the symptoms about two weeks after birth. The baby required careful hospital treatment for five long weeks before release from the hospital. A diplomate in pediatrics gave in evidence that babies subject to heroin withdrawal symptoms at the time of birth are labeled as suffering from congenital morphinism or narcotic addiction in the new born. Such clear symptoms in the new born cannot occur unless the mother is a narcotic addict, that is, dependent on narcotic drugs and in imminent danger of such dependency, as defined in the law. The usual delivering mother is in danger of such dependency, or actually dependent, if she has been daily injecting heroin into her blood stream for at least two weeks prior to the birth of her child, in doses of six to twelve milligrams daily. No one but the wholesale pusher knows how strong the contents of the glassine envelopes may be, and so the symptoms must be the indicator.

In another case, attorneys of the child’s parent, seek to annul the new law for alleged constitutional defect. In the said case, narcotic addiction alone was established, without proof of medical harm to the children. Indeed in that case, the mother had been recently formally adjudged as narcotic addict under the law, in the Supreme Court, by her own formal admission and plea. She was actually committed by the Supreme Court for a residential confinement of three years, subject to parole and supervision by the narcotic addiction control commission.

The evidence revealed that her child was two years of age when the hearing and adjudication in the court took place and that the mother had been addicted for approximately six months. Thus no withdrawal symptoms or any physical transmission of heroin to her child could be proved.

Nevertheless, the mother was committed and totally unable to take personal care of her child by reason of the narcotic addiction commitment. Moreover, she testified that the child’s father was confined in jail for an unrelated offense, so that no parent was available nor was care made available by either parent or other responsible person.

Lastly, in the case of the three children, the allegations were held insufficient on their face to withstand a motion to dismiss. Child abuse was originally pleaded on the sold assertion that the mother is a user of drugs and she appears at such sessions under the influence of drugs. Leave was given to modify the allegation to add that the said parent is a narcotic addict or is in danger of becoming dependent on a narcotic drug and should therefore be considered a narcotic addict. At the next preliminary trial, the complainant did move to modify the petition by adding an allegation that the mother of said three minor children is a narcotic addict. The mother appeared in court unable to stand unaided and thoroughly under the influence of some toxic substance. The mother was remanded to a hospital for a few days for urinalysis and observation and treatment for detoxification. The hospital report can be used in evidence.

As before indicated, it would be a matter of affirmative defense for the parent to assert and prove that the children have been and will be well cared for by or through the efforts of the addicted parent. The brief of the mother already presents that issue by stating that children are healthy with good medical histories, and that none of the children have ever suffered from any infectious or detrimental condition to their health or safety caused by the commission or omission of the parent.

Since as counsel urges, the court must adopt a construction, to avoid raising serious doubt of constitutional defect, the parent will have the opportunity to make the defense asserted even if narcotic addiction may be proved.

Insofar as article claimed to affect the narcotic addict’s status as a parent or custodian of children, it should also be interpreted in light of the jurisdiction’s comprehensive program for the treatment and rehabilitation of addicts. The entire legislative scheme views the addict as still a person, although one with a serious and debilitating illness entitled to humane treatment and vested with all the rights and privileges of any other citizen. Consequently the adoption of a construction which would terminate the parental or custodial privilege of custody upon the sole showing of being adjudicated a narcotic addict despite countervailing showing of affirmative defense, would be both at odds with said prevailing policy towards addiction and would represent a retreat to the not so distant period when addiction led to punishment and was not viewed as an ailment necessitating medical attention.

Despite the vigorous parade of authority, it would appear that the legislature would have been more clearly entitled to denominate presumptive neglect than presumptive abuse, nevertheless should at this stage be upheld. The difference between a finding of abuse and one of neglect results in a difference between a presumption requiring removal of the child from the parent in the case of abuse and a presumption of abuse if there is addiction, as distinguished from a discretionary non-presumptive removal in the case of a finding of neglect only.

Women are sensitive during pregnancy. Anything that happens to them might affect the development and condition of their child. If you are a medical practitioner and now facing malpractice charges, you can have the Kings County Medical Malpractice Lawyers. However, if you are parent who had suffered injury, the Kings County Birth Injury Lawyer or Kings County Injury Attorneys can be your legal representative and you can reach them by calling the office of Stephen Bilkis and Associates.

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