On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, FN-06-67-02.
Before Judges Skillman, Cuff and Winkelstein.
The opinion of the court was delivered by: Cuff, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this appeal, we review a finding of abuse and neglect pursuant to N.J.S.A. 9:6-8.21c. Because we find that the trial judge improperly admitted a prior statement of one of the children and based several findings of fact on the statement, we reverse and remand for further proceedings.
L.A. is the mother of two children: K.S., age thirteen, and S.A., age two. Both children resided with L.A. R.S., the father of both children, had sexually assaulted K.S. and was barred from L.A.'s home. The events giving rise to the finding of abuse and neglect against L.A. occurred at least one year after the assault and after R.S. had been barred from entering the home in which L.A. and the children resided and from having any contact with the children.
Our review of the record compiled in this proceeding is hampered by the efforts of L.A.'s counsel to preclude discussion of the sexual assault by R.S. against his oldest daughter, K.S. The attorney for L.A. sought to confine the trial judge's consideration of the actions by the mother solely to the events giving rise to the complaint filed by the Division of Youth and Family Services (DYFS) arising out of an incident which occurred in January 2002. While counsel's purpose is understandable, the result is a record so truncated that it lacks context and we are left to piece together the events which occurred prior to January 11, 2002, in order to appreciate the gravity of DYFS's concern about the welfare of the children. The trial judge and the attorney representing DYFS were fully informed of the facts developed in a prior proceeding initiated in late 2000 or early 2001 and concluded in April 2001. However, none of that information is available to this court. Such a record not only may frustrate appellate review, but also may unnecessarily complicate the proceedings. In such circumstances, reference to and incorporation of the record of the prior proceedings may be the appropriate course. See New Jersey Div. of Youth & Family Servs. v. J.T., 354 N.J. Super. 407, 414 (App. Div. 2002) (trial judge properly took judicial notice of his findings in an earlier domestic violence hearing).
We glean from this record of the plenary hearing conducted on May 9, 2002, that K.S. was sexually assaulted by R.S. sometime in 2000. On January 2, 2001, a restraining order was entered barring contact by R.S. with the children. *fn2 It also appears that K.S. had been removed from L.A.'s custody but was returned to L.A.'s custody in April 2001, at which time the no contact order was continued.
On January 11, 2002, R.S. entered L.A.'s apartment. L.A. and the children were present as well as J.M., a mutual friend of L.A. and R.S. Unprovoked, R.S. grabbed J.M., who immediately directed the children to go to the other room. R.S. left after J.M. called the police. At trial, J.M. testified that he was unsure why R.S. came to the apartment. He admitted, however, that he had borrowed money from R.S. on a previous occasion.
In its complaint, DYFS alleged that L.A. failed to protect her children from R.S. in that J.M. rather than she ordered the children to leave the room, that she failed to inform DYFS of the January 11 incident or file a complaint against R.S., and that she invited R.S. to the apartment that day or informed him that J.M. would be there to enable R.S. to collect the debt. Furthermore, DYFS alleged that L.A. had failed to inform the agency of the January 11 incident after the fact or failed to seek enforcement of the no contact order.
In support of its complaint, DYFS presented the testimony of Tara Brogan, a caseworker. She interviewed J.M. and as a result of that interview, she decided to conduct a formal investigation. As part of this investigation, Brogan interviewed K.S. at school. Brogan testified that K.S. told her that L.A. called R.S. and told him to come to get his money from J.M. and that L.A. had taken the youngest child, S.A., to visit R.S.
Following the interview with K.S., Brogan interviewed L.A. Brogan testified that during the visit she observed the following message on L.A.'s telephone screen, "Don't tell them [R.S.] was there or the State will take them. People with sex crimes can't be around kids." L.A. is hearing impaired and uses a text telephone to communicate with others.
On January 17, 2002, DYFS filed a verified complaint seeking custody of K.S. and S.A. An order was entered that day removing the children from their mother's care and placing them in the custody of DYFS. We were informed at oral argument that the children remain outside the home in the custody of DYFS. A dispositional hearing has commenced but was adjourned until January 10, 2003.
During the fact-finding hearing, L.A. requested an in camera interview with K.S. The trial judge denied the request; she reasoned that an interview would subject the child to further trauma. At the conclusion of the hearing, the judge found that L.A. had neglected her children because she had failed to protect them from contact with R.S. She noted that a prior abuse and neglect case had been closed in April 2001 by the entry of an order requiring counseling for L.A. and K.S. and contained "an absolute no contact order" between R.S. and K.S. *fn3 The judge found that L.A. understood the order. Furthermore, the judge found that the events of January 11, 2002, were ...