On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-174-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Remand completed July 27, 2010.
Reargued October 26, 2010
Before Judges Skillman, Yannotti and Espinosa.
This termination of parental rights appeal is back before us after completion of the remand we ordered in our prior opinion. N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118 (App. Div. 2010). In that opinion we concluded that the trial court had committed reversible error in admitting into evidence the part of Dr. Uvay Mehta's report which concluded that Z.B. suffers from fetal alcohol syndrome. Id. at 126-34. Therefore, we reversed the judgment terminating parental rights and remanded the case for rehearing and reconsideration. Id. at 134. Because the sole ground for reversal was the erroneous admission of Dr. Mehta's report, we indicated that the parties could rely on the record of the original trial on remand, except for Dr. Mehta's report and any testimony based on that report.
Ibid. We also indicated that although we assumed the primary focus of any new evidence presented on remand would be directed at whether Z.B. suffers from fetal alcohol syndrome, the parties were not precluded from "offering other relevant evidence."
Dr. Mehta testified at the continuation of the trial on remand regarding the alleged fetal alcohol syndrome suffered by Z.B. However, it became evident during the course of that testimony that his conclusions regarding this subject in the report erroneously admitted into evidence at the original trial were based on what had been told to him by others. Consequently, the parties entered into a stipulation that any references in the record to fetal alcohol syndrome would be stricken and that the Division of Youth and Family Services (DYFS) would not rely upon Z.B.'s alleged fetal alcohol syndrome as a basis for the termination of defendants' parental rights.
Testimony was heard regarding other subjects, including in particular testimony by T.B. and Nicole Drake, the director of a drug rehabilitation program in which T.B. participated, concerning T.B.'s continued sobriety during the period between the original trial and the continuation of the trial on remand. Dr. Elizabeth Smith, a psychologist appointed by the court to conduct an independent evaluation of the parties, also testified. Consequently, the record before us on this appeal consists of the evidence presented at the original trial, except for Dr. Mehta's report and any testimony based on that report, as supplemented by the evidence presented at the continuation of the trial on remand.
Z.B. was born on March 9, 2006, and is now four-and-a-half years old. As a result of his mother T.B.'s long history of drug and alcohol abuse, neglect of her nine other children, admitted use of cocaine during her pregnancy with Z.B., and positive test for cocaine use two days after his birth, DYFS took custody of Z.B. before his discharge from the hospital after filing for an emergency ...