In Michigan,  a child has a legal right to begin life with sound mind and body.  Yet the family court may not assert Juvenile Code jurisdiction until after birth. In re Baby X addressed the question of whether a parent\u27s prenatal conduct may form the basis for jurisdiction upon birth. It held that a mother\u27s drug use during pregnancy is neglect, allowing the court to assert jurisdiction immediately upon the child\u27s birth. In deciding Baby X, the Court specifically reserved the question of whether parental drug use during pregnancy might be sufficient to permanently deprive a parent of custody. In the 40 years since that April 1980 decision, our knowledge regarding the impact of prenatal exposure to drugs and alcohol has grown dramatically and the law has evolved. These developments suggest prenatal exposure is an aggravating circumstance and should result in immediate termination of parental rights when a petition is filed, at least in some cases

Vandervort, Frank E.

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University of Michigan School of Law

University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 2019 Prenatal Drug Exposure as Aggravated Circumstances Frank E. Vandervort University of Michigan Law School, vort@umich.edu Available at: https://repository.law.umich.edu/articles/2068 Follow this and additional works at: https://repository.law.umich.edu/articles  Part of the Family Law Commons, Juvenile Law Commons, and the State and Local Government Law Commons Recommended Citation Vandervort, Frank E. "Prenatal Drug Exposure as Aggravated Circumstances." Mich. B.J. 98, no. 11 (2019): 24-6. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact mlaw.repository@umich.edu. Chi ldren’s Law24In Michigan, “a child has a legal right to begin life with sound mind and body.”1 Yet the family court may not assert Juvenile Code jurisdiction until after birth.2 In re Baby X addressed the question of whether a parent’s pre-natal conduct may form the basis for jurisdiction upon birth. It held that a mother’s drug use during pregnancy is neglect, allowing the court to assert jurisdiction immediately upon the child’s birth.In deciding Baby X, the Court speciﬁcally reserved the question of whether parental drug use during pregnancy might be sufﬁcient to permanently deprive a parent of cus-tody. In the 40 years since that April 1980 decision, our knowl-edge regarding the impact of prenatal exposure to drugs Michigan Bar Journal November 2019Prenatal Drug Exposure as Aggravated CircumstancesBy Frank E. Vandervortand alcohol has grown dramatically and the law has evolved. These developments suggest prenatal exposure is an aggra-vating circumstance and should result in immediate termi-nation of parental rights when a petition is ﬁled, at least in some cases.The impact of prenatal substance useThe impact on the developing child of prenatal exposure to these substances has been a concern for decades. Alcohol’s impact has been the subject of some 50 years of intensive medical research. The effects of drugs like cocaine, meth-amphetamines, and opioids (both prescribed and illegal, such 25as heroin) have also been the subject of a great deal of re-search.3 Exposure to these teratogens “can have long-lasting implications for brain structure and function.”4 The effects range from mild to devastating. The precise impact of prenatal substance exposure on a particular child depends on many factors, including the combination of alcohol and drugs used, the timing of use, the amount of use, whether the mother binged or was a steady user, the mother’s diet, whether the mother used nicotine during pregnancy, the frequency of pre-natal medical care, and general stressors in the environment (e.g., whether the mother was involved in a relationship char-acterized by domestic violence). The child’s postnatal environ-ment may exacerbate or ameliorate the impact of exposure.Following is a brief overview of the effects of various substances.AlcoholExposure to alcohol is harmful to a developing child’s brain even in small doses; no amount is safe. The impact of its use falls along a spectrum from relatively mild to truly devastat-ing. For instance, prenatal alcohol use is the leading cause of developmental delay.5 Summarizing the effects of alcohol, researcher Tina Birk Irner writes that exposure results in “cog-nitive and behavioral deﬁcits that impair both the social and occupational future of the person exposed with a need in severe cases for lifelong assistance.”6 Tragically, children in foster care may go undiagnosed or be improperly diagnosed when they have been prenatally exposed to alcohol.7 MarijuanaExposure to marijuana in utero may have a range of ef-fects, including sleep disturbances, increased startle responses, tremors, and a decrease in cognitive functioning by nine months. School-aged children exposed to marijuana suffer negative cognitive impacts, particularly in higher-order think-ing, sometimes referred to as executive functioning; verbal and memory deﬁcits by age 4; overall cognition and language deﬁ-cits by ages 5–6; attention deﬁcits, increased impulsivity, and hyperactivity by age 6; and increased juvenile delinquency.8CocaineThe cocaine epidemic of the 1980s and 1990s created a crisis for the child protection system. Cocaine use during pregnancy continues to cause severe problems for exposed children. In infancy, these may include premature birth, gen-eral growth retardation, lower arousal, and excitability. Later, growth retardation has been shown to continue until age 10 in some children, and older children may experience language deﬁcits (which persist at least into adolescence), behavior problems, and executive functioning deﬁcits. These children may also suffer “long-term structural alterations” in the cortical and limbic regions of the brain.9 Research sug-gests these infants fare better when removed from their bio-logical parents.10 OpioidsThe present opioid epidemic has hit Michigan hard, result-ing in a substantial increase in the number of exposed babies.11These neonates tend to have low birthweights and often expe-rience withdrawal, necessitating intensiﬁed medical treatment in a neonatal intensive care unit. These children commonly experience small head circumference, which is associated with lower brain volume.12 As Dr. Emily J. Ross and her colleagues summarize, “[t]he damage of prenatal opiate exposure is de-bilitating and long lasting.”13 Among the longer-term defects these children may experi-ence are heart defects, motor skills impairments, cognitive def-icits, attention deﬁcits, and hyperactivity. Because experienc-ing withdrawal during pregnancy is quite harmful to a fetus, the preferred treatment for opioid-addicted pregnant women is medication-based (e.g., methadone, Buprenorphine). Unfor-tunately, medication-based treatment is not readily available in some areas of the state.14 Additionally, these medications are themselves harmful to the developing fetus, imposing on these children at least some of the same harms, including with-drawal upon birth, seen in illicit opioid use.15Child protection lawWhen Baby X was decided in 1980, the federal government was not deeply involved in child protection. By contrast, to-day, through a detailed funding structure, federal law domi-nates the ﬁeld, albeit indirectly.16 Federal law makes clear that “the child’s health and safety shall be the paramount con-cern” when determining whether reasonable efforts to reunify the family are appropriate.17 November 2019 Michigan Bar JournalAt a Glance:With the opioid epidemic, more children are being born prenatally exposed to a variety of toxic drugs  and alcohol. These children often suffer numerous, serious, and lifelong injuries. Because the child  protection system’s paramount consideration is the safety and timely permanency for these children,  the children may meet the statutory criteria for aggravated circumstances, and courts should  consider early termination of parental rights.Drug-exposed newborns are at risk of languishing  in foster care as agency  staff and courts focus on rehabilitating the parents.26Michigan Bar Journal November 2019Chi ldren’s Law  — Prenatal Drug Exposure as Aggravated CircumstancesFrank E. Vandervort is a clinical professor of law at the University of Michigan Law School where he teaches in the Child Advocacy Law Clinic. He also chairs the Amicus Committee of the American Profes-sional Society on the Abuse of Children.ENDNOTES1. In re Baby X, 97 Mich App 111, 115; 293 NW2d 736 (1980).2. In re Dittrick Infant, 80 Mich App 219; 263 NW2d 37 (1978).3. For a detailed discussion, see Weisberg & Vandervort, A Liberal Dilemma:Respecting Autonomy While Also Protecting Inchoate Children From PrenatalSubstance Abuse, 24 William & Mary Bill of Rights J 659 (2016), availableat <https://scholarship.law.wm.edu/wmborj/vol24/iss3/6/> [https://perma.cc/9FET-BP37] and Vandervort & Palusci, “Of Sound Mind and Body”: A Callfor Universal Drug Screening for All Newborns, in Dwyer, ed, The OxfordHandbook of Children and the Law (New York: Oxford University Press,forthcoming 2020). All websites cited in this article were accessedSeptember 21, 2019.4. Ross et al, Developmental Consequences of Fetal Exposure to Drugs: WhatWe Know and What We Still Must Learn, 40 Neurophsyopharmacology Rev61, 61 (2015), available at <https://www.nature.com/articles/npp2014147.pdf> [https://perma.cc/S4LC-QF5X].5. Malbin, Fetal Alcohol Spectrum Disorder (FASD) and the Role of Family CourtJudges in Improving Outcomes for Children and Families, 55 Juv and FamilyCourt J 53 (2004), available at <https://isc.idaho.gov/cp/docs/FASD%20and%20the%20Role%20of%20Family%20Court%20Judges%20in%20Improving%20Outcomes.pdf> [https://perma.cc/M9FH-YBQW].6. Irner, Substance exposure in utero and developmental consequencesin adolescence: A systemic review, 18 Child Neuropsychology 521,524 (2012).7. Chasnoff, Wells & King, Misdiagnosis and Missed Diagnoses in Foster andAdopted Children with Prenatal Alcohol Exposure, 135 Pediatrics 264 (2015),available at <https://pediatrics.aappublications.org/content/pediatrics/135/2/264.full.pdf> [https://perma.cc/V3YD-3X7H].8. Developmental Consequences of Fetal Exposure to Drugs at 67 andA Liberal Dilemma: Respecting Autonomy at 659.9. Developmental Consequences of Fetal Exposure at 67.10. Id. at 66.11. See, e.g., Kovanis, The tiniest addicts: How U.P. babies became part of theopioid epidemic, Detroit Free Press (May 30, 2018) <https://www.freep.com/story/news/local/michigan/2018/05/03/opioid-epidemic-drug-addicted-babies/335398002/> [https://perma.cc/596F-NT6K].12. “Of Sound Mind and Body.”13. Developmental Consequences of Fetal Exposure at 68.14. Bohnert, Erb-Downward & Ivacko, Opioid Addiction: Meeting the Need forTreatment in Michigan, Policy Briefs, Poverty Solutions, Univ of Michigan(April 2019) available at <https://poverty.umich.edu/research-publications/policy-briefs/opioid-addiction-meeting-the-need-for-treatment-in-michigan/>[https://perma.cc/ULF9-XDXB].15. Developmental Consequences of Fetal Exposure at 68–70.16. In re Mason, 486 Mich 142,157 n 8; 782 NW2d 747 (2010).17. 42 USC 671(a)(15)(A).18. 42 USC 671(a)(15)(D)(i).19. MCL 722.638 and MCL 712A.19a(2).20. The tiniest addicts.21. Developmental Consequences of Fetal Exposure at 62.22. See, e.g., In re Nash, 165 Mich App 450; 419 NW2d 1 (1987) andIn re LaFrance, 306 Mich App 713; 858 NW2d 143 (2014).23. Id.To operationalize this requirement, federal law allows each state to deﬁne a set of “aggravated circumstances” cases in which the state need not make efforts to reunify an abused or neglected child with his or her parent, but may instead seek immediate termination of parental rights.18 Michigan has deﬁned a set of aggravated circumstances that includes cases in which a parent’s acts cause a child to suffer “serious impair-ment of an organ” or “life threatening injury.”19 Additionally, these babies sometimes experience parental abandonment.20As this summary of impacts demonstrates, many newborns exposed to drugs and alcohol experience serious, potentially life-threatening injuries—particularly to their brains, but also to their hearts, lungs, and other organs (e.g., opioid expo-sure may cause serious stomach and digestive problems)—that persist through childhood and into adolescence. Prenatal exposure, therefore, constitutes aggravated circumstances. A petition alleging prenatal exposure must seek termination of parental rights at the initial disposition. ConclusionIn many of these cases, the parents have long histories of addiction, repeated failures in treatment, and multiple ba-bies exposed to substances. We must not disregard fathers. Their drug use may contribute to the harm these children ex-perience. For example, paternal cocaine use may “inﬂuence offspring brain development and neurobehavioral develop-ment.”21 Fathers are often complicit in the mothers’ obtaining and using drugs and alcohol during pregnancy. Parental sub-stance use often accompanies myriad other functioning prob-lems that affect parenting capacity—mental illness, domestic violence, and criminality and incarceration to name a few.22 Drug-exposed newborns are at risk of languishing in foster care as agency staff and courts focus on rehabilitating the parents.23 With an understanding of the actual harm done to prenatally exposed children and a proper application of the law, there is no reason these children cannot achieve more timely permanence. ??

Prenatal Drug Exposure as Aggravated Circumstances

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