On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-174-08.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Gilroy and Simonelli.
The most significant issue presented by this consolidated appeal from a judgment terminating parental rights is whether the part of a medical report containing a doctor's expert opinion was properly admitted into evidence under Rule 5:12-4(d). We conclude for the reasons set forth in section III of this opinion that such a report constitutes inadmissible hearsay unless the Division of Youth and Family Services (DYFS) establishes all the prerequisites of N.J.R.E. 803(c)(6) for its admission as a business record and that DYFS failed to establish those prerequisites regarding the medical report introduced into evidence in this case. We also conclude for the reasons set forth in section II of this opinion that DYFS's failure to provide that report to appellants or to give them any other notice before trial that DYFS was alleging that their child was born with fetal alcohol syndrome constituted a denial of due process, which requires a reversal of the judgment terminating parental rights.
The case involves parental rights to a baby boy, Z.B., who was born on March 9, 2006. The appellants are T.B., who is Z.B.'s mother, and B.M., who is Z.B.'s father.
The hospital discharge summary reported that a "urine toxicology" test performed on Z.B. was "positive for cocaine." However, the discharge summary also reported that Z.B.'s "physical findings were normal for term newborn baby and vital signs were stable." There is no indication Z.B. exhibited any withdrawal symptoms at birth as a result of the presence of cocaine in his system.
T.B. had nine other children before giving birth to Z.B., and DYFS has had substantial involvement with her over a period of close to twenty years, which has resulted in a series of allegations of neglect of her children. T.B.'s dependency upon cocaine has been a major contributing cause of that neglect. None of T.B.'s other children are in her custody. T.B.'s relatives have raised those other children and for this reason DYFS has not previously brought an action against her for the termination of parental rights.
Before the proceedings relating to Z.B., DYFS had had only limited involvement with B.M. However, B.M. fathered four of T.B.'s other children, two of whom were born addicted to cocaine, and never actively undertook to serve the role of caretaker for any of those children. B.M. also apparently resided with T.B. during the course of her pregnancy with Z.B.
Based on Z.B.'s positive test for the presence of cocaine, T.B.'s history of drug abuse, and T.B.'s inability to care for her other children, DYFS took custody of Z.B. before his discharge from the hospital and filed an action seeking care, custody, and supervision. The trial court granted DYFS's application for custody of Z.B., who was placed in foster care with the ex-wife of T.B.'s cousin. Z.B. has remained in the custody of this foster parent, who wishes to adopt him, for more than three years.
In October 2007, DYFS filed a complaint for the termination of T.B.'s and B.M.'s parental rights to Z.B. The case was tried over three days in May 2009, which resulted in the judgment terminating parental rights that is the subject of this appeal.
Because we conclude the trial court committed reversible error in admitting a medical report which concluded Z.B. exhibits symptoms "consistent with Fetal Alcohol Spectrum Disorder" and relying upon this report to find that DYFS had established grounds for the termination of parental rights, it is only necessary to summarize the portions of the trial record relating to the admission into evidence of this report.
This report, by Dr. Uday Mehta of Children's Specialized Hospital, first surfaced on the first day of trial. During the direct examination of a DYFS case worker, the following colloquy occurred:
Q: And how do you know about [Z.B.'s] behavioral issues; is it just through [Z.B.'s foster mother] or have you had an opportunity to speak with [Z.B.'s] doctor?
A: Yes. I -- I have a note that I just received that said that he -- he is diagnosed with fetal alcohol syndrome, something of that nature.
Q: And you just received that from whom?
THE COURT: Where is Dr. Mehta from?
THE WITNESS: She runs Specialized ...