## Facts

- DYFS filed an abuse-and-neglect complaint concerning an infant born January 10, 2005, alleging abuse/neglect based solely on the mother’s refusal during pregnancy to take recommended antiretroviral (ARV) medication to reduce perinatal HIV transmission risk.
- The mother learned she was HIV-positive during the pregnancy and received prenatal care from a nurse practitioner experienced with HIV-positive mothers and infants.
- The provider recommended a standard ARV regimen during pregnancy, at delivery, and for the newborn; evidence indicated such regimens reduce transmission risk from roughly 28% to about 7%.
- The mother admitted she did not regularly take the medication; she testified the refusal stemmed from denial of her diagnosis, not an intent to harm the fetus or the newborn.
- The infant was HIV-exposed in utero; testimony indicated initial positive HIV tests in newborns may reflect maternal antibodies rather than actual infection.
- Fact-finding hearings were held in June and July 2005; DYFS presented the nurse practitioner’s testimony, and the mother testified. The court required proof rather than accepting a bare stipulation on this theory.
- DYFS’s case did not rely on alleged post-birth failures of care, but exclusively on the prenatal medication refusal.

## Issues

1. Whether a pregnant woman’s refusal to follow a recommended ARV regimen intended to reduce fetal HIV transmission can constitute “abuse or neglect” of the child, once born, under N.J.S.A. 9:6-8.21(c).
2. Whether DYFS proved by a preponderance of the evidence at fact-finding that the infant was an “abused or neglected child” under N.J.S.A. 9:6-8.44 based only on that prenatal refusal.

## Decision

- The court entered judgment for the defendants at fact-finding and declined to make an abuse-or-neglect finding.
- The court held that prenatal refusal to take ARVs, without more, did not satisfy the statutory definition of abuse or neglect.
- The court concluded DYFS failed to meet its burden of proof by a preponderance of the evidence that the infant was an abused or neglected child.

## Legal Principles

- At a fact-finding hearing under N.J.S.A. 9:6-8.44, DYFS must prove by a preponderance of the evidence that the child is abused or neglected as defined in N.J.S.A. 9:6-8.21(c).
- The Act’s abuse/neglect definitions are directed to conduct toward a “child” and to post-birth harm or statutorily recognized post-birth risk; absent clear legislative direction, courts will not extend the Act to prenatal medical decision-making.
- A parent’s prenatal refusal of medical treatment designed to benefit the fetus is not, by itself, abuse or neglect of the later-born child under the Act.
- Evidence that a medical regimen could reduce transmission probabilities does not alone establish actual harm, or a statutorily sufficient post-birth risk attributable to the prenatal refusal, for purposes of an abuse/neglect adjudication.
- Expanding child-protection statutes to function as compelled medical treatment for pregnant women is a policy choice requiring explicit legislative authorization rather than judicial extension.

## Conclusion

The Family Part rejected an abuse-and-neglect theory premised solely on an HIV-positive mother’s prenatal refusal to take recommended antiretroviral medication, holding that the child-abuse statute did not clearly reach prenatal treatment decisions and that DYFS failed to prove abuse or neglect by a preponderance of the evidence.


N.J. Div. of Youth & Fam. Servs. v. L.V. & C.M., 382 N.J. Super. 582, 889 A.2d 1153 (Ch. Div. 2005)