Baby Birth Credit: Olha Yefimova / Shutterstock.com

Commonly, hospital staff will contact Child Protective Services (CPS) to inform them of the mother's and baby's compromised medical status. Whatever the short-term placement decision is for the baby—whether to remain with the mother, to be placed with the mother's spouse or partner, or with a non-relative—an investigation can yield a finding of abuse and/or neglect. Toward that end, many legal questions will need to be addressed:

  • What drug use during pregnancy constitutes harm to a child under the relevant state legislative, regulatory, and case law scheme?
  • What evidence will be needed and admissible?
  • How credible and substantial must the evidence be? 
  • What witnesses can be and should be called? 
  • What constitutes an opinion within a reasonable degree of medical certainty?

Attorneys who deal with clients affected by the opioid crisis in general, and NAS concerns in particular, need to have a rudimentary medical background of this specialty area in order to competently represent these clients.

The Finnegan Neonatal Abstinence Scoring System, as modified, is the most commonly used tool for scoring and measuring NAS. The instrument is typically administered after a feeding approximately every three to four hours. NAS will be diagnosed if the infant earns three consecutive high scores or two consecutive severe scores in central nervous system symptoms, metabolic functioning, and gastrointestinal disturbances. The diagnosis is additionally based on the mother's history of drug or substance abuse. This detailed history will include what substances she used, when they were used, and the quantity of the substance used. All of these will be a guide to the baby's likely withdrawal trajectory.