On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-226-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...