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New Jersey Division of Youth and Family Services v. A.B


March 5, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-226-09.

Per curiam.



Submitted December 20, 2011

Before Judges Fisher, Baxter and Nugent.

A.B. (Annette)*fn1 and J.F. (Joseph) are the mother and father of four-year old J.F., Jr. (Joey), and Annette and A.M. (Andrew) are the mother and father of two-year old A.M., Jr. (Andy). In these consolidated Title Nine abuse or neglect*fn2 cases, both fathers appeal from the August 17, 2010 Family Part order that terminated the Title Nine abuse or neglect litigation, declared that the children would remain in the legal and physical custody of Annette, and prohibited both fathers from having any contact with either Annette or the children. Andrew also appeals from the October 14, 2009 Family Part order that found he had abused or neglected a child.

Most of the hearings throughout the Title Nine proceedings were conducted in Joseph's absence, no proofs were ever presented as to Joseph, and the court's determination was unsupported by any evidence. Consequently, we reverse and vacate only that part of the August 17, 2010 order prohibiting Joseph from having any contact with Annette or Joey. If, while incarcerated or after being released, Joseph seeks visitation with the child, then he may file an appropriate application for visitation.

We also find procedural deficiencies in the August 17, 2010 hearing that require a similar result as to Andrew. If, while incarcerated or after being released, Andrew seeks visitation with either Andy or Joey, then he may file an appropriate application for visitation.

Finally, we conclude the trial court's finding that Andrew abused or neglected Joey*fn3 was based on hearsay contained in a police report that was not authenticated and admitted in evidence. We therefore reverse the order that determined Andrew had abused or neglected Joey, and remand that matter for a new fact-finding hearing.


The New Jersey Division of Youth and Family Services (the Division) first became involved with Annette, her children, and their fathers after law enforcement officers executed a search warrant at Annette's apartment on April 10, 2009. At that time, Annette, who was nine months pregnant with Andy, lived with Andrew*fn4 and her son Joey. Joey was fifteen months old; his biological father, Joseph, had been incarcerated since Joey was about two months old.

During the search of the apartment, police officers seized thirty-two grams of cocaine, marijuana, and a loaded handgun. As a result, the officers arrested Annette and Andrew, and charged them with drug offenses, weapons offenses, and receiving stolen property. Andrew was incarcerated and could not immediately post bail; Annette was not incarcerated because Andy's birth was imminent. Although Joey was staying with relatives on the day the search occurred, law enforcement officers notified the Division. When the Division caseworkers investigated the incident, Annette agreed to participate in services provided by the Division and to sign a safety plan requiring Joey to remain in the care of relatives.

During the week following her arrest, Annette gave birth to Andy. While Annette was at the hospital, the Division caseworkers asked her to undergo substance abuse screening; she refused. Division personnel also learned that during the past few years, Annette had been hospitalized multiple times for six different fractures. Concerned about Annette's recent arrest and her refusal to submit to drug screening, and suspecting that Andrew might be abusing Annette, the Division detained Andy at the hospital but subsequently permitted him to be placed with the same relatives who were caring for Joey.

On April 20, 2009, the Division filed a verified complaint and order to show cause seeking a court order placing Andy and Joey under its care, custody, and supervision. At a hearing conducted the same day, Division caseworker Susan Russo and Andrew testified. Joseph was not present. Following the hearing, the court concluded that living in Annette's residence would be contrary to the children's welfare. The court placed the children under the Division's custody, care, and supervision. The court also ordered that Andrew and Annette undergo substance abuse evaluation, and Annette have "liberal supervised visitation with both children, to be supervised at all time by her parents." The court fixed May 5, 2009, as the return date of the order to show cause.

All parties appeared for the May 5, 2009 hearing, though Andrew and Joseph were unrepresented. Andrew had made bail; Joseph was still incarcerated. Following the hearing, the court entered an order directing that the children remain in the custody, care, and supervision of the Division; that Annette undergo individual counseling; that Annette have unsupervised visitation with the children; and that Andrew have supervised visitation with Andy.

The court conducted a case management hearing on July 9, 2009, and a fact-finding hearing*fn5 on October 14, 2009. Andrew, Annette, Joseph, and their counsel all participated in the fact-finding hearing. Division caseworker Russo was the only witness to testify. After acknowledging that she was "the keeper of the case record," Russo explained how the Division had become involved in the case. Andrew's counsel objected to Russo testifying based upon her review of records instead of from her personal knowledge. When the Division's attorney responded that the Division was "relying strictly on items which have been previously submitted to the Court and are admissible under [Rule] 5:12-4(d)," the court overruled the objection.

Before Russo continued with her testimony, Annette's attorney asked to place on the record a discussion he had had with the Division's attorney, who responded:

I'm not sure where this is headed, but it's the Division's intention[] to proceed against [Andrew], because the case is simpler and more obvious. We don't waive our right to hold a fact[-]finding against anybody else, but we don't intend to do that today. We're here . . . strictly to preserve the jurisdiction of the court.

Following that representation, Russo continued to testify. She explained that when police arrested Annette and Andrew, Joey was not at home because he was visiting his maternal grandparents. When Russo started to testify about the drugs and loaded gun found by the police in Annette's apartment, Andrew's attorney objected to the "hearsay testimony." The court overruled the objection, explaining that "if the police report and these reports were part of the complaint and part of the attachments to the complaint or have been previously removed, then they are competent to be produced and introduced into evidence." Thereafter, Russo testified as to the location of the drugs, drug paraphernalia, and handgun in Annette's apartment.

During the hearing, Annette stipulated that the charges resulting from the search of her apartment were all dismissed with the exception of receiving stolen property, to which she had pled guilty in exchange for the State's recommendation that she be sentenced to a term of non-custodial probation. The court took judicial notice that Joseph had pled guilty to two offenses. According to the court's computer records, Andrew pled guilty to possession with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:35-5a and 2C:35-5b; and certain persons not to have weapons, N.J.S.A. 2C:39-7b. The parties presented no other testimony, and no documentary evidence was marked for identification, offered into evidence, or admitted into evidence by the trial court.

At the conclusion of the hearing, the court determined the Division had proved by a preponderance of the evidence that there were drugs and a weapon in the home, and that but for a holiday, Joey would have been at the home and would have been "placed at risk as a result of the contraband being in the home . . . . He could have had access to it." Based on those findings, the court concluded Andrew had abused or neglected Joey. The court made no findings about Joseph.

The confirming order the court entered the same day stated "that [Andrew] abused or neglected the child in that he was convicted of possessing cocaine and weapons which were found by the police in the house where [Joey] was living[.]" The order also permitted Joseph, who remained incarcerated, to receive photographs of and information about Joey, but disallowed visitation. Joseph was not brought to court for further proceedings until the final hearing in August 2010.

Six months after the fact-finding hearing, on April 13, 2010, Annette and Andrew appeared with counsel for a permanency hearing, but neither Joseph nor his attorney were present. Based on the recommendations contained in a Division report and Annette's proposed parenting time reunification plan, the court approved a permanency plan anticipating reunification of the children with Annette within ninety days. The court ordered that Andrew, who had been sentenced to ten years imprisonment with five years parole ineligibility on the drug and weapons offenses, could visit with Andy "if there [was] an adult willing to transport [Andy] to jail." Joseph was not mentioned at the hearing.

Neither Andrew nor Joseph appeared at the next compliance review hearing on June 21, 2010. Andrew's attorney appeared, but Joseph's attorney did not appear. Andrew's attorney asked the court to schedule the next hearing in August because he and Andrew were awaiting the results of a DNA test Andrew had taken to determine if Andy was his biological son. The court agreed, ordered transfer of physical custody of the children to Annette, and scheduled the next hearing.

During the final hearing on August 17, 2010, Andrew's attorney appeared; Joseph's did not. Both Andrew and Joseph had been transported to the holding cell in the courthouse, but for security reasons they were not produced for the hearing, Andrew having threatened to "do harm" to Joseph if the two were brought to the courtroom.

Andrew's attorney requested that Andrew be permitted visitation with Andy if someone would transport Andy to the correctional facility where Andrew was incarcerated. Annette adamantly opposed Andrew's request. Her attorney handed to the court a police report referencing a threat by Andrew. According to the report, Andrew's mother told Annette that Andrew suffered from psychological and anger management problems, was not stable, and "if anybody in [Andrew's] family was to ever see the child, [Annette] could be assured that she would never see the child again."

Andrew's attorney, who had not seen the report, responded that he could file an application for visitation, but would prefer to speak to his client, who was "entitled to a hearing on this issue, not colloquy from attorneys and hearsay police reports." Annette's attorney then handed to the court letters and a photo Annette had received from Andrew; the letters threatening the Division caseworkers and Annette, the photo depicting Annette, pregnant, with two black eyes.

The court determined there was enough before it "to tell me that frankly [Andrew] is welcome to come here, deny anything he ever wrote, and everything he ever said. It would still tell me he poses a risk to his child." The court also noted that Andrew posed "a risk to the adults, which is another risk to the children. If he decides to do anything to [Annette], that certainly is contrary to the welfare of the interests of her children." Stating that it had no "qualms . . . about not allowing contact visits or other visits with [Andrew] at this time," the court explained that "[y]ou can see from [Andrew's] letters the kind of coercive control that is classic domestic violence." The court characterized the letters as "demeaning, demanding, very coercive in nature." The court also cited the "rather graphic evidence of what he's done to [Annette] in the past."

When Andrew's counsel asked if the court's ruling prevented Andrew from filing a visitation action at some point in the future, the court replied that Andrew could always file an application for visitation. Then, without further explanation, the court entered an order directing that legal and physical custody of the children be returned to Annette, and that there be no contact between the fathers and the children until further order of the court. This appeal followed.



We begin by reviewing the well-settled principles that apply to the complex relationships among parents, their children, and the State. It is indisputable that "[p]arents have a constitutionally protected right to maintain a relationship with their children." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). That right is not entirely unrestricted and "must be balanced against the State's parens patriae responsibility to protect the welfare of children." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (internal quotation marks and citations omitted). Title Nine is a comprehensive legislative scheme designed to accomplish that objective. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 346 (2010).

Title Nine authorizes the Division to remove a child from a home, see, e.g., N.J.S.A. 9:6-29, but also requires judicial review of such removal and establishes crucial judicial proceedings following the removal of children from their parents. See N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398-400 (2009). The fact-finding hearing and dispositional hearing *fn6 are two such events:

Both the fact-finding hearing and the dispositional hearing are critical stages in Title Nine proceedings. Those hearings must be conducted "with scrupulous adherence to procedural safeguards," D.Y.F.S. v. A.R.G., 179 N.J. 264, 286 (2004), and the trial court's conclusions must be based on material and relevant evidence, N.J.S.A. 9:6-8.46(b), (c). The witnesses should be under oath and subject to cross-examination. D.Y.F.S. v. J.Y., 352 N.J.Super. 245, 265 (App. Div. 2002). As concisely stated by the court in J.Y., "this critically important part of the business of the Family Part demands meticulous adherence to the rule of law." Ibid. Just as important, the trial court must state the grounds for its disposition. N.J.S.A. 9:6-8.51(b). [G.M., supra, 198 N.J. at 401.]

Competent evidence admissible at Title Nine fact-finding and dispositional hearings includes Division reports. N.J.S.A. 9:6-8.46 authorizes a court conducting a Title Nine proceeding to admit into evidence any writing "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 . . . public or private institution or agency." Additionally, Rule 5:12-4(d) authorizes the Division to "submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants." Under N.J.R.E. 803(c)(6), a party seeking to admit a hearsay statement pursuant to this rule must demonstrate that "the writing [was] made in the regular course of business," the writing was "prepared within a short time of the act, condition or event being described," and "the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence." [M.C. III, supra, 201 N.J. at 347 (quoting State v. Matulewicz, 101 N.J. 27, 29 (1985)).]

Thus, institution or agency reports must be properly authenticated before they are admitted into evidence.

When a court makes a determination at a fact-finding or dispositional hearing, it must not only "state the grounds for [its] disposition," see N.J.S.A. 9:6-8.51(b), but must also support its findings with "specific reference to the evidence relied upon." J.Y., supra, 352 N.J. Super. at 259. "Meaningful appellate review is inhibited unless the [trial court] sets forth the reasons for [its] opinion." Id. at 261 (quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990)). When a trial court adequately explains the factual basis for its decision, we accord deference to such fact-finding because of the special expertise of judges deciding issues involving the welfare of children. Cesare v. Cesare, 154 N.J. 394, 411-413 (1998).


With those principles in mind, we address Joseph's challenge to that part of the order prohibiting him from having any contact with Annette or Joey.

Joseph was afforded virtually none of the procedural safeguards required in Title Nine proceedings. Inexplicably, Joseph's attorney did not appear at a single proceeding after the fact-finding hearing, and Joseph appeared only for the final hearing, where he was brought to court but was not present in the courtroom. Because Joseph was denied the procedural safeguards required by Title Nine, because neither he nor his counsel were present during the hearing resulting in the order prohibiting his contact with Annette and Joey, and because no findings of fact were made about him, we reverse and vacate that part of the August 17, 2010 order prohibiting Joseph from having any contact with Annette or Joey.

Our decision should not be construed as permitting visitation between Joseph and Joey. It does not. The question of whether the welfare of [a] child will be promoted or disserved by visitation with [a] father [who is incarcerated is a question with] . . . no obvious or easy answer [but] . . . this much at least is clear. Although the father may not have forfeited his parental rights as a result of his . . . crime, nevertheless the answer to the visitation question must be dictated exclusively by concern for the child's best interests and not by the conflicting desires, wishes or sensibilities of the parents . . . . [Fusco v. Fusco, 186 N.J. Super. 321, 326 (App. Div. 1982).]

In Fusco, we identified some of the factors that must be weighed by a court deciding whether to permit a child's visitation with an incarcerated parent. For instance, we recognized the "general desirability of maintaining and nurturing the paternal relationship between father and child." Ibid. We also recognized strong countervailing factors militating against such visitation, such as the risk of premature knowledge of [the] father's crime and problems attendant upon the environmental constraints of prison visits, the probable effect of these visits on the maternal relationship[,] . . . [the mother's] ability to function as the sole custodial parent . . . [and] the mother['s right] to have some control over the time when and the manner in which the child will learn the inevitable and devastating truth about the father. That is not only her responsibility but a decision which she is probably most qualified to make. [Id. at 326-27.]

We reiterate that the court's decision concerning visitation by a child with an incarcerated parent "requires the application of a high degree of care, factual exploration, deliberation and sensitivity to personal and family dynamics and motivations" because the decision "will have an extraordinary capacity to affect [the] child's life permanently." Id. at 327.

Joseph's mere request for visitation with Joey did not establish that Joey's best interests would be served by either requiring him to visit his father in jail or requiring Annette to facilitate such visitation. Consequently, there is no need for a remand. Joseph may file an appropriate application with the court for visitation with Joey.


We now turn to Andrew's appeal in which he raises two arguments: first, the court's finding of abuse or neglect was not supported by substantial credible evidence because (a) the court admitted and relied upon hearsay in a police report, (b) the Division failed to prove Joey was in imminent danger of harm, and (c) judicial notice of Andrew's guilty plea did not prove abuse or neglect; second, his due process rights were violated because he was not present for the dispositional hearing and his visitation request was denied without an evidentiary hearing.

Neither the Division nor Annette have responded to Andrew's argument that the police report was inadmissible hearsay. The Law Guardian contends the court correctly ruled that the police report had previously been provided to the court and was competent to be introduced into evidence; and appropriately admitted the report to prove police involvement and how the case came to be instituted. The Law Guardian also asserts the trial court's reliance on the police report was "de minimis" because its findings were supported by other competent evidence, including Andrew's statement, made at a previous hearing, concerning the drugs and gun seized by the police from Annette's apartment. Lastly, the Law Guardian asserts the court's decision was supported by psychological evaluations that were not admitted into evidence, but had previously been provided to the court.

The Law Guardian's arguments are unpersuasive for at least three reasons. First, the police report was neither identified nor admitted into evidence. Rather, the trial court simply permitted Russo to testify about its contents.

Second, the Law Guardian's argument that Russo referred to the police report to demonstrate "police involvement and how the case came to be instituted" is not entirely accurate. Although Russo's testimony may initially have been elicited for that purpose, Russo later testified about the details of the police search and about the drugs and gun seized by the police, including their location in Annette's apartment. Stated differently, Russo testified from the report to establish the truth of its content. The police report was not admitted into evidence; it was not identified, marked as an exhibit, or authenticated. Consequently, the police report was never properly before the trial court, yet the court relied upon the truth of the report's content to support the conclusions that Andrew abused or neglected Joey.

Third, though psychological evaluations admitted during other hearings may have supported the trial court's determination, such evidence was never presented to the court during the fact-finding hearing. The court was not asked to judicially notice such evidence, assuming it was judicially noticeable under N.J.R.E. 201(b)(4), and there is no indication from the court's findings of fact that it relied upon such evidence.

Had the trial court relied upon psychological reports not presented during the fact-finding hearing, the court would have violated the fundamental principle of exclusiveness of the record.

In any proceeding that is judicial in nature, whether in a court or in an administrative agency, the process of decision must be governed by the basic principle of the exclusiveness of the record. "Where a hearing is prescribed by statute, nothing must be taken into account by the administrative tribunal in arriving at its determination that has not been introduced in some manner into the record of the hearing." Benjamin, Administrative Adjudication in New York, 207 (1942). Unless this principle is observed, the right to a hearing itself becomes meaningless. Of what real worth is the right to present evidence and to argue its significance at a formal hearing, if the one who decides the case may stray at will from the record in reaching his decision? Or consult another's findings of fact, or conclusions of law, or recommendations or even hold conferences with him? [In re Parlow, 192 N.J. Super. 247, 250 (App. Div. 1983) (quoting Mazza v. Cavicchia, 15 N.J. 498, 514 (1954)). See also, Elizabeth Federal S. & L. Assn. v. Howell, 24 N.J. 488, 506-07 (1957).]

Title Nine fact-finding hearings must be conducted with formality and adherence to fundamental evidentiary rules. N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 90-91 (App. Div. 2008). This precept was disregarded during the fact-finding hearing.

Having said that, we do not imply that the Division reports, the police report, or the psychological evaluations were not admissible. As previously stated, N.J.S.A. 9:6-8.46 and Rule 5:12-4(d) authorize the admissibility of Division reports and the reports of professional consultants. Police reports are admissible under N.J.R.E. 803(c)(6). Cf. State v. Lungsford, 167 N.J. Super. 296, 310 (App. Div. 1979) (explaining that police reports are admissible but embedded "citizen" declarations are excludable hearsay).*fn7

Moreover, the authentication of such reports is relatively uncomplicated. The proponent of a report may attempt to obtain a stipulation that the report is a business record and admissible subject to evidentiary principles concerning embedded hearsay. See Barone, supra, 310 N.J. Super. at 378 n.2. Such stipulations should not be withheld absent a bona fide dispute about the elements of authentication. See N.J.R.E. 101(a)(4) (providing that in the absence of a bona fide dispute, the court may permit a fact to be established by stipulation, binding admission or, in civil proceedings, any relevant evidence). Reports may also be authenticated through the submission of an appropriate affidavit or certification. See N.J.S.A. 9:6-8.46(a)(3). And of course, the authenticating elements can be established through the testimony of a witness. See M.C. III, supra, 201 N.J. at 347.

These methods of authenticating documentary evidence are not intended to be exclusive. Here, no attempt was made to authenticate documents. The court failed to observe the evidentiary formalities required in a Title Nine abuse or neglect proceeding when it relied upon Russo's testimony about the content of the police report in making its determination. For those reasons, we must decide whether the court's determination was based upon competent evidence independent of the police report.

Andrew contends that the Division failed to prove Joey was in imminent danger of harm and that judicial notice of Andrew's guilty plea did not prove abuse or neglect. We do not disagree with the trial court's conclusion that a parent or guardian who unlawfully possesses a gun and deals drugs from an apartment where a fifteen-month-old child resides is guilty of abuse or neglect. But Andrew's plea established neither that he was living in Annette's apartment nor that he kept drugs and a loaded gun in the apartment. Had the police report been admitted in evidence, the observations and activities of the officers would likely have been admissible. See Barone, supra, 310 N.J. Super. at 378.

The court's reliance on inadmissible hearsay, and the absence of other competent evidence establishing that Andrew kept the drugs and gun in Annette's apartment where Joey had access to them, requires reversal of the abuse or neglect determination.

Nonetheless, had the trial court ruled on Andrew's objection to the police report, the Division could have sought to authenticate the report or establish Andrew's abuse or neglect through other competent evidence. We therefore remand the matter for a new hearing. Should the Division decide not to proceed, then the Title Nine proceedings against Andrew shall be dismissed.

We next address Andrew's argument that he was denied visitation without an evidentiary hearing. As we have emphasized, trial courts should not conduct in an informal manner proceedings that have a profound impact on the lives of families:

Judicial findings based on unspecified allegations, hearsay statements, unidentified documents and unsworn colloquy from attorneys and other participants erodes the foundation of the twin pillars upon which [Title Nine] rests: (1) that no child should be exposed to the dangers of abuse or neglect at the hands of their parent or guardian; and, commensurately, (2) that no parent should lose custody of his/her child without just cause. [J.Y., supra, 352 N.J. Super. at 265.]

Here, the court based its order prohibiting Andrew from any contact with Annette or Andy upon unsworn statements and documents handed to the trial court by counsel. We recognize that Andrew had created a security risk by threatening Joseph. We will not second-guess the determination of either the sheriffs who were responsible for transporting Andrew or the trial judge, that Andrew's conduct presented a security risk. Cf. State v. Spivey, 122 N.J. Super. 249, 255-56 (App. Div. 1973), rev'd on other grounds, 65 N.J. 21 (1974) (explaining that trial judges have the authority to exclude a disruptive defendant from the courtroom until he promises to conduct himself properly). But even if Andrew was properly excluded from the courtroom, his conduct did not warrant the trial court accepting hearsay statements and documents handed up by counsel as the basis for reversing a previous visitation order.

That said, we shall not vacate the August 17, 2010 order as to Andrew. There were references throughout the proceedings below to Andrew abusing Annette and to temporary restraining orders that Andrew previously violated. As of the August 17, 2010 proceeding, Annette possessed letters containing implicit and explicit threats from Andrew. Although Andrew is serving a rather lengthy prison sentence, Annette may have refrained from seeking a restraining order based upon the trial court prohibiting Andrew from contacting her and Andy. Accordingly, within sixty days, Annette or the Law Guardian may file a motion under the FN docket seeking a restraining order. If no such motion is timely filed, the court shall vacate that part of the August 17, 2010 order denying Andrew any contact with Annette or the children, and that part of the April 13, 2010 order permitting visitation between Andrew and Andy. The same considerations concerning visitation between Joseph and Joey apply to visitation between Andrew and Andy. If Andrew wants to have Andy brought to the jail for visitation, Andrew may institute an appropriate application for visitation under an FD docket.

It does not appear from Andrew's brief that he challenges the order awarding physical and legal custody to Annette. He did not object during any of the Title Nine proceedings to Annette having custody of the children, and at the August 2010 hearing, his attorney objected only to the court's ruling barring Andrew from having contact with Annette or Andy. Indeed, at the time the order was entered, Andrew was in jail, the Division had agreed to dismiss the Title Nine proceedings, and no one other than the children's mother had sought custody of either child. Under those circumstances, we see no basis for reversing or vacating that part of the August 17, 2010 order awarding physical and legal custody of the children to Annette.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

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