On appeal from the Superior Court, Chancery Division, Family Part, Monmouth County.
King, Ashbey and Skillman. The opinion of the court was delivered by Ashbey, J.A.D. Skillman, J.A.D., dissenting.
In this contested custody case the judge granted plaintiff, father W.W. (Walter) and defendant mother I.M. (Isobel) joint custody of C.M. (Charles), but appointed Walter the primary residential parent. Isobel's motion for a stay of this order was denied. Isobel appeals.*fn1
Charles was born on August 15, 1980, at a time when Walter was married to Carla,*fn2 to whom he had been married for some 20 years. Isobel ran a horse farm. Her occupation was breeding horses and giving riding lessons. She also cared for her recently bedridden mother who lived with her. From birth Charles lived with his mother and grandmother and beginning in July 1982 Walter had a court order for visitation. Ultimately the parties agreed to an order for custody in which Isobel had custody and Walter had visitation. It is a fair reading of the record that Walter had consistently participated in Charles' life from birth.
When Charles was two years old, he was bitten by Isobel's dog, one that Walter asserted he had previously asked Isobel to give away because he was a danger to the child. According to Walter, Isobel told him she would protect the child from the dog, but two weeks later Charles was again bitten. He was hospitalized requiring surgery.
This incident led to Walter's 1983 complaint to the Division of Youth and Family Services (DYFS). He complained about the dog attacks and also about the condition of Isobel's home. According to testimony and the DYFS records a worker for DYFS persuaded Isobel who reluctantly agreed to get rid of the dog.
On August 10, 1986, Walter requested another investigation by DYFS. The next day Joyce Jacobs, a DYFS social worker, investigated Walter's then allegation of child neglect. In her testimony Jacobs described the condition of Isobel's house. She said that clothing and old food was everywhere. There were piles of medical bottles, dirty pots and dishes, dried dog feces in several of the rooms, on the floors and under the furniture. There was a decomposing dead rat on the front step and starving kittens. There were wires hanging in the kitchen and bare electrical wires in the hallway. The house was overrun with flies and fleas. Jacobs concluded that the house was an unsafe place for Charles to live. She persuaded Isobel to allow Charles to stay with Walter while Isobel cleaned the place. Charles stayed with his father for a couple of weeks and then was returned to his mother. DYFS supervision continued until January of 1987.
Walter saw more of Charles. On February 19, 1987, while Walter was giving Charles a bath, he saw extensive bruising on the child's buttocks. Walter contacted DYFS, and Isobel admitted that she had spanked Charles on his bare buttocks because he had not gotten ready for school on time. At that time Isobel
admitted she expected Charles to get himself ready for school each day with no help from her because she was too busy.*fn3
Following these incidents DYFS filed a complaint for abuse and neglect and Charles lived with Walter from February 1987 until August 1987.*fn4 In addition to the incidents described, the DYFS complaint asserted that Isobel had attempted to have Walter and Jane killed and only failed because she could not raise the fee. There followed a series of DYFS related court orders for evaluations and counseling including the CPC evaluation at issue, and finally an order which directed Walter to file a complaint for custody if he intended to do so. Following Walter's May 1987 custody complaint, a Family Part judge ordered that the DYFS proceeding remain inactive pending the completion of Walter's custody case and ordered the Monmouth County Probation Department to conduct a full custody investigation.
Upon the filing of the Probation Department's report, many days of trial testimony followed: November 17 and December 16, 1987, January 7, March 7, March 28, and June 10, 1988 when the judge issued his ruling. Among the witnesses testifying for Walter were his wives, his parents and other relatives, acquaintances of Isobel, DYFS workers, the principal of Charles' school and Charles' teacher. The principal testified to the "noticeable improvement" in Charles when he lived with Walter. He said that there was a "dramatic change in the boy's demeanor, his attendance, including the tardiness and his work habits, and his general ability to get along with others." Walter's former wife testified that Charles was dirty and hungry when he came to visit over the six year period that she
saw him weekly. There was also testimony that Isobel had asked a friend to help her hire a hit-man to "do bodily harm" to Walter and Jane.
Dr. Jordan Pauker, the psychologist who had been counseling Isobel and Charles every other week since February 1987 under the DYFS order, testified that Isobel was becoming more aware of Charles's needs and was learning how to meet those needs. Dr. Pauker further testified that there was no noticeable behavioral change in Charles when he lived with his father and no reason to believe that Charles should be removed from his mother's home. Dr. Pauker gave no opinion as to Charles's best interest with respect to custody. Kathy D'Antonio, the DYFS social worker assigned to the case since July 1987, testified that since she had been involved, the housekeeping standards in Isobel's house had been acceptable.
In the middle of trial Isobel proffered the testimony of a child psychology expert who gave the opinion that it would be detrimental to Charles to remove him from her care. This proffer was prompted by the trial judge's admission of reports of the March 11, 1987 Children's Psychiatric Center (CPC) examination of Charles; the March 16, 1987 CPC testing of Isobel and the March 30, 1987 CPC testing of Walter which were court ordered in connection with the DYFS neglect and abuse complaint and which were part of the court's records. The judge also reviewed the Monmouth County Probation Department Report and the DYFS file.*fn5 On appeal she asserts that all of these rulings were error and that if admissible, the reports were improperly relied on by the judge.
There is controversy concerning the admissibility of hearsay in a custody trial, particularly hearsay which is not contained in
a court ordered report. See Ponzini v. Ponzini, 135 Misc. 2d 468, 515 N.Y.S. 2d 974 (Fam.Ct.1987), detailing the law of sister states. See also In re Scarlett, 231 N.W. 2d 8 (Iowa Sup.Ct.1975); Gumphrey v. Gumphrey, 262 Minn. 515, 115 N.W. 2d 353 (1962); De Boynton v. De Boynton, 137 Cal.App. 2d 106, 289 P. 2d 868 (1955).
We recognize that there was such inadmissible hearsay in this trial. John Cernak of the Monmouth County Prosecutor's office's, for instance, was permitted to testify that he was told about Isobel's purported effort to harm Walter and his wife. This was certainly inadmissible hearsay and that it was error to have admitted it.*fn6 Defendant's primary complaint, however, concerns the admission of the CPC reports to which the judge referred in his opinion.*fn7
Generally, an exception to the hearsay rule is made for forensic reports in custody cases. See Annotation, "Right, in child custody proceedings, to cross-examine investigating officer whose report is used by court in its decision," 59 A.L.R. 3d 1337, 1361 (1974), where it was said,
We have a particular rule applicable to DYFS reports. R. 5:12-4(d) provides as follows:
The Division of Youth and Family Services shall be permitted to submit into evidence, pursuant to Evidence Rules 63(13) [business record exception] and
62(5) [definition of business], reports by staff personnel or professional consultants. Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal.
N.J.S.A. 9:6-8.46 also states:
In any hearing [to determine child abuse or neglect] . . . any writing, record or photograph, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any hospital or any other public or private institution or agency shall be admissible in evidence in proof of that condition, act, transaction, occurrence or event, if the judge finds that it was made in the regular course of the business of any hospital or any other public or private institution or agency, and that it was in the regular course of such business to make it, at the time of the condition, act, transaction, occurrence or event, or within a reasonable time thereafter, shall be prima facie evidence of the facts contained in such certification.
N.J.S.A. 9:6-8.10a also provides:
a. All records of child abuse reports made pursuant to section 3 of P.L.1971, c. 437 (C. 9:6-8.10), all information obtained by the Division of Youth and Family Services in investigating such reports including reports received pursuant to section 20 of P.L.1974, c. 119 (C. 9:6-8.40), and all reports of findings forwarded to the central registry pursuant to section 4 of P.L.1971, c. 437 (C. 9:6-8.11) shall be kept confidential and may be disclosed only under the circumstances expressly authorized under subsection b. herein.
b. The division may release the records and reports referred to in subsection a., or parts thereof, to:
(6) A court, upon its finding that access to such records may be necessary for determination of an issue before the court . . .;
While defendant concedes the admissibility of testimony by DYFS workers with knowledge, defendant contends that these rules and statutes allowing for the admission of DYFS consultant reports do not apply in this case because the custody case was not a DYFS initiated proceeding and the evidence not proffered by DYFS.*fn8
A review of the record, however, demonstrates that the cases were procedurally intertwined. DYFS began contact with mother and child in 1982. Although that case was closed, and not reopened until August of 1986, DYFS maintained supervisory contact based upon the father's 1986 complaint until January of 1987. Based upon the February 1987 complaint and ensuing order, DYFS maintained supervision while the custody trial proceeded. Isobel agreed to its continued supervision until January of 1988. It was a DYFS order of May 4, 1987, (resulting from an April 10, 1987 hearing) which directed Walter to apply for custody. The resulting custody complaint contained the notation that it was to be served upon the DYFS worker. The August 28, 1987 DYFS order reflects that the June 5, 1985 DYFS hearing was consolidated with the return date of Walter's custody complaint. Defendant's two attorneys, her DYFS-related (and court-appointed attorney) and her attorney in the custody case, appeared at that consolidated hearing. The resulting DYFS order provided that DYFS continue to pay for the mother's therapy and set the custody-visitation schedule which governed the parties' actions until the trial of the custody proceeding was complete.*fn9
The record is thus replete with evidence that the disposition of the DYFS abuse and neglect complaint was dependent upon the disposition of the custody complaint. We cannot conclude that evidence clearly admissible in a DYFS proceeding, was inadmissible because DYFS had temporarily relinquished its adversarial role and that its admission was reversible error requiring a new custody hearing.
Moreover, even if their reports were not admissible as part of the DYFS file under R. 5:12-4(d), the CPC experts were appointed
by the court. R. 5:3-3*fn10 also governs the admissibility of such reports.
Whenever the court, in its discretion, concludes that disposition of an issue will be assisted by expert opinion, and whether or not the parties propose to offer or have offered their own experts' opinions, the court may order any person under its jurisdiction to be examined by a physician, psychiatrist, psychologist or other health or mental health professional designated by it and may appoint an accountant or other appropriate expert to appraise the value of any property or to report and recommend as to any other issue. The court may also direct who shall pay the cost of such examination or appraisal. The court may also require a social investigation by a probation officer or other person at any time during the proceeding before it.
Significantly R. 5:3-3 requires no particular party to produce the expert at trial, nor the court. The comment following this rule notes that "a court-appointed expert is subject to cross-examination by the parties. . . ." Pressler, Current N.J. Court Rules, Comment R. 5:3-3 (1987).*fn11
The use of court-ordered expert reports in family matters is well accepted. The Uniform Marriage and Divorce Act (UMDA) § 404(b) provides:
The court may seek the advice of professional personnel, whether or not employed by the court on a regular basis. The advice given shall be in writing and made available by the court to counsel upon request. Counsel may examine as a witness any professional personnel consulted by the court. [9A U.L.A. 156, 600 (1987)].
UMDA § 405 also provides for a court ordered investigation which may include diagnosis by professional personnel. A report is to be made available, including texts of diagnostic reports and the names and addresses of persons consulted and any party to the proceeding may call the investigator and any person whom he has consulted for cross-examination. The principle behind the admissibility of such expert reports, particularly
those kept by the State agency entrusted with the duty of child care has long governed our law. In the case of In re Cope, 106 N.J. Super. 336, 343 (App.Div.1969), we said that it was impossible to expect DYFS (then the Bureau of Children's Services) workers "to give live testimony on all matters within their personal knowledge." We ruled that it then became "necessary to allow certain evidence to be ...