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New Jersey Division of Youth and Family Services,*Fn1 v. D.E.J

November 13, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-354-10.

Per curiam.



Submitted October 22, 2012 -

Before Judges Sabatino, Fasciale and Maven.

This appeal arises from a Family Part fact-finding order issued on December 1, 2010, which determined that defendant, D.E.J., had abused or neglected her newborn son A.F.G.E.L. ("the child") by exposing him to a substantial risk of harm as a result of her drug abuse, thereby violating N.J.S.A. 9:6-8.21(c)(4). The trial judge reached that determination after a hearing in which the Division of Youth and Family Services ("the Division") presented nine items of documentary evidence, all of them over defense counsel's objection. The Division also relied upon the testimony of a case worker who lacked any personal knowledge of the underlying facts because she had succeeded the case worker who had originally investigated the matter. In contesting the trial court's findings on appeal, defendant argues that the court improperly considered numerous hearsay statements, including the case worker's testimony containing hearsay statements, hearsay contained within the admitted records, and improperly authenticated medical records.

For the reasons that follow, we remand this matter to the trial court, with the direction that it re-examine the evidentiary and substantive issues in light of this court's July 23, 2012 published opinion in New Jersey Division of Youth & Family Services v. M.G., 427 N.J. Super. 154, 172-75 (App. Div. 2012) (holding that the Family Part abused its discretion in admitting certain hearsay reports submitted by the Division over defense counsel's objection), and in light of other recent case law addressing the limits placed upon the admissibility of hearsay documents in Title 9 and Title 30 litigation.


Because we are remanding this matter and because defendant continues to dispute the trial court's factual findings, we do not recite the factual background at length. Briefly stated, on April 7, 2010, defendant gave birth to her son at Englewood Hospital. The next day, after receiving a referral from Englewood that both defendant and her child had tested positive for benzodiazepines, the Division launched an investigation.

According to a Division case worker's report, the hospital staff perceived that the child had a feeding intolerance, which the Division's reports identified as a symptom of withdrawal, and the child was therefore put on a regiment of morphine. The child continued to be treated at the hospital and, as indicated in the case worker's report, was classified as medically fragile.

On May 18, 2010, the child was cleared for discharge from the hospital. That same day, the Division conducted an emergency removal without court order pursuant to N.J.S.A. 9:6-8.29 ("the Dodd Act"). The Division then filed an order to show cause with a verified complaint in the Family Part seeking custody, care, and supervision of the child. That application was heard on May 20, 2012. Both defendant and the child's putative father, F.L.,*fn2 appeared in court at that time. The trial court found the removal appropriate, noting that the child had tested positive at birth for drugs and that defendant has a long history of substance abuse. The court granted the Division care and supervision, but not custody, of the child, and transferred legal and physical custody of the child to F.L. Additionally, the court allowed defendant supervised visits.

Thereafter, on June 7, 2010, the Division filed an amended verified complaint for care, custody, and supervision of the child, pursuant to a second emergency removal without court order under the Dodd Act. The Division then removed the child from F.L.'s care. Following a hearing that same day, the Family Part granted legal custody of the child to the Division but ordered that F.L. shall continue to have physical custody. In addition, the court granted defendant supervised visits, which were subject to cancellation if she appeared to be under the influence.*fn3 A fact-finding hearing on the abuse or neglect allegations was scheduled.

Prior to the abuse or neglect fact-finding hearing, defense counsel submitted a letter to the court, setting forth her objections to the Division's proposed evidence. Specifically, defense counsel objected to the admission of the Division's exhibits P-1 through P-6,*fn4 contending that those records contained inadmissible hearsay and also that some of the records were not properly authenticated and contained redactions.

The fact-finding hearing was held on December 1, 2010. The judge initially heard arguments from counsel in a non-testimonial N.J.R.E. 104(a) hearing to address defendant's objections to the Division's documentary evidence. At the completion of that Rule 104(a) hearing, the trial judge overruled the defendant's objections and admitted the Division's exhibits in their entirety.

Judy Garcia, a Division case worker, was the sole witness called by the Division at the fact-finding hearing. On direct examination, Garcia testified that, upon the birth of the child, both defendant and the child tested positive for benzodiazepines. She also stated that exhibits P-1 and P-3 through P-6 were all Division records made in the ordinary course of business. On cross-examination, Garcia testified that she had not become involved in this matter until May 2010, a month after the child was born. She acknowledged that she was not the Special Response Unit worker in this case and that she did not conduct the investigation. In fact, Garcia admitted that she had no personal knowledge of the circumstances that precipitated this case, other than what she had read in the records.

In light of Garcia's acknowledgment that she lacked personal knowledge, defense counsel moved to strike her entire testimony from the record. The trial judge, however, denied defendant's motion because "[t]his case worker is familiar with the case file. She identified each of the documents which have been presented by the Division in this matter." Defense counsel then asked Garcia whether she had been involved with defendant prior to this case or in any other cases, to which Garcia answered in the negative. Despite the lack of foundation for Garcia's testimony, the judge stated that she would "place the appropriate weight on the information." However, the oral opinion issued at the conclusion of the proceeding did not expressly address the impact that Garcia's lack of personal knowledge had on the court's decision.*fn5

Defendant did not testify on her own behalf at the fact-finding hearing, nor did she present any witnesses or documentary evidence. The Law Guardian appointed for the child likewise presented ...

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