On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-121-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Fuentes and Chambers.
Defendant R.F. appeals from the order of June 20, 2008, terminating her parental rights to three of her four children, namely, twins, A.M. and M.M., born in 1996, and a daughter, M.F., born in 1998. The remaining child, D.D., born in 1992, was removed by the Division of Youth and Family Services (DYFS) from R.F.'s care in 1992, and she is not involved in these proceedings. The complaint also sought to terminate the parental rights of J.M., the biological father of A.M. and M.M.; to terminate the parental rights of D.R., the biological father of M.F.; and to terminate any parental rights of H.M.A., the legal husband of R.F. J.M. and D.R. defaulted, and H.M.A. was found not to be the father of any of the children.
Following a bench trial, the trial court terminated R.F.'s parental rights. The trial court provided a short explanation of its decision in an oral opinion placed on the record at the conclusion of the trial on June 6, 2008, and then issued a comprehensive written opinion on June 11, 2008. On June 17, 2008, the trial court issued an addendum to that decision expressly addressing the termination of parental rights of the children's fathers, D.R. and J.M. The trial court's decision terminating the parental rights of R.F., D.R., and J.M. was memorialized in a judgment dated June 20, 2008. The trial court found that H.M.A. was not the father of any of these children, since R.F.'s contact with him predated the birth of these children by a number of years.
On appeal, R.F. contends that (1) the trial judge abused its discretion by reviewing DYFS records prior to trial; (2) that testimony from the DYFS caseworker repeating the diagnosis from a psychological report constituted inadmissible evidence; and (3) that DYFS did not prove by clear and convincing evidence that R.F.'s parental rights should be terminated.
At the outset of the trial, the judge stated that he had read all of the exhibits in the case. No objection to this procedure was raised below. On appeal, defendant argues that this was improper, pointing out that a number of those exhibits were not admitted into evidence. Certainly, a trial judge's decision must be based on "competent reliable evidence." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002). However, R.F. identifies no aspect of the trial judge's lengthy decision that relied on any of this inadmissible evidence. The fact that the judge may have seen this evidence does not taint the proceedings. A judge by training and experience is capable of setting aside inadmissible material from the record when evaluating the evidence and reaching a decision. See State v. Kern, 325 N.J. Super. 435, 444 (App. Div. 1999) (stating that "[a] judge sitting as the factfinder is certainly capable of sorting through admissible and inadmissible evidence without resultant detriment to the decision making process"). Nothing in the record indicates that the trial judge relied on inadmissible evidence in reaching his conclusions.
R.F. also contends that a fatal error occurred when the DYFS caseworker was allowed to testify without objection to the opinions expressed by Dr. Karen D. Wells, a psychologist who had evaluated R.F. The testimony of the DYFS caseworker paraphrasing Dr. Wells's opinions was inadmissible hearsay under N.J.R.E. 802, since it falls within none of the hearsay exceptions set forth in N.J.R.E. 803. However, Dr. Wells's report itself was properly admitted into evidence. R. 5:12-4(d) (allowing reports by DYFS professional consultants to be admitted into evidence under N.J.R.E. 803(c)(6) and 801(d)). The trial judge did not rely on the DYFS caseworker's paraphrasing when considering Dr. Wells's opinion, but rather he quoted extensively directly from Dr. Wells's report itself in his written decision. Further, R.F. has not identified any portion of the DYFS caseworker's testimony that inaccurately represented the contents of Dr. Wells's report. Thus, this evidentiary oversight was harmless.
We have carefully reviewed the record in light of the four pronged "best interests" test set forth in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), as subsequently substantially codified in N.J.S.A. 30:4C-15.1(a) and more recently examined in N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88 (2008). The trial judge's findings of fact are fully supported by "adequate, substantial, and credible evidence in the record," and thus, are accorded deference. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). We affirm substantially for the reasons set forth in Judge Rothschild's thoughtful and thorough opinion.
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