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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 13, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,*FN1 PLAINTIFF-RESPONDENT,
v.
D.E.J., DEFENDANT-APPELLANT.
IN THE MATTER OF A.F.G.E.L., A MINOR.

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

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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.

I.

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 no evidence, but supported the Division's position.

After considering the Division's proofs, the trial judge issued an oral opinion on December 1, 2010 concluding that the Division had proved by clear and convincing evidence*fn6 that by virtue of [defendant's] drug abuse, she placed her child "at risk of harm." In the course of her analysis, the judge noted that the child was born exposed to drugs, that he was deemed medically fragile, and was not discharged by the hospital until more than a month after his birth. The judge also relied upon information in the documentary records that the child had exhibited withdrawal symptoms, including jittery behavior, irritability, and excessive sucking. The judge also noted defendant's past history of drug abuse and the lack of evidence that she completed a substance abuse treatment program.

The judge specifically noted that she found "the documentary evidence to be persuasive in this matter." In particular, the judge referred to the results of the drug tests performed at the hospital. The judge also granted the Division leave to supplement the record with a certification to authenticate the hospital records, which was thereafter supplied and contained the signature of the hospital's "correspondence secretary," albeit without proof of the secretary's delegated authority.*fn7

The trial court subsequently approved the Division's permanency plan of the child, which contemplates the termination of defendant's parental rights and adoption of the child by F.L. The Title 9 litigation was consequently terminated in September 2011.

This appeal by defendant followed, in which she argues that the trial court's findings of fact must be vacated because, pursuant to N.J.S.A. 9:6-8.46(b), the Division did not present "competent, material and relevant evidence" to support those findings.

Defendant contends that the judge improperly admitted, in their entirety, exhibits P-1 through P-6 presented by the Division, despite the fact that those records contain numerous third-party statements from persons who did not testify. Defendant argues that the trial court indiscriminately admitted those documents as business records under N.J.R.E. 803(c)(6), without analyzing whether they contained embedded hearsay in violation of N.J.R.E. 805, which excludes hearsay within hearsay unless each embedded statement meets a hearsay exception.

Defendant also contends that the trial court misapplied the special evidence provisions set forth in N.J.S.A. 9:6-8.46 and in Rule 5:12, applicable in litigation brought by the Division. Defendant urges that these evidentiary errors are of particular significance in a case such as this, where the Division's sole witness was a case worker who admittedly had no personal knowledge*fn8 of the contents of the records that were presented for the court's consideration.

II.

Title 9 controls the adjudication of abuse or neglect cases. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citing N.J.S.A. 9:6-8.21 to -8.73). In an abuse or neglect proceeding, the Division bears the burden of proof by a preponderance of evidence adduced at a fact-finding hearing, that a mother has committed abuse or neglect. N.J.S.A. 9:6-8.46(b). The threshold question before us is whether the trial judge improperly admitted and relied upon inadmissible documentary and testimonial evidence that materially affected her findings of abuse or neglect. To evaluate that question, we first must canvas the applicable rules, statutes, and principles of evidence law.

N.J.S.A. 9:6-8.46 addresses the admissibility standards for evidence that the Division may rely on in an abuse or neglect hearing. The evidence relied upon must be "competent, material and relevant." N.J.S.A. 9:6-8.46(b); see also N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009). That requirement is consistent with the principle that Title 9 fact-finding hearings must be conducted with sufficient formality and general adherence to fundamental evidentiary rules. See N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 90-91 (App. Div. 2008) (citing N.J. Div. of Youth & Family Servs. v. G.M., 398 N.J. Super. 21, 38 (App. Div. 2008), aff'd in part and modified in part, G.M., supra, 198 N.J. 382; N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 268 (App. Div. 2002)).

Subsection (a) of N.J.S.A. 9:6-8.46 sets forth distinctive provisions governing the proofs admissible in Title 9 proceedings:

a. In any hearing under this act, including an administrative hearing held in accordance with the "Administrative Procedure Act," P.L. 1968, c. 410 ([N.J.S.A. 52:14B-1] et seq.), (1) proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the responsibility of, the parent or guardian and (2) proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or guardian shall be prima facie evidence that a child of, or who is the responsibility of such person is an abused or neglected child, and (3) any writing, record or photograph, whether in the form of an entry in a book or otherwise, 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 hospital or any other public or private institution or agency shall be admissible in evidence in proof of that condition, act, transaction, occurrence or event, if the judge finds that it was made in the regular course of the business of any hospital or any other public or private institution or agency, and that it was in the regular course of such business to make it, at the time of the condition, act, transaction, occurrence or event, or within a reasonable time thereafter, shall be prima facie evidence of the facts contained in such certification. A certification by someone other than the head of the hospital or agency shall be accompanied by a photocopy of a delegation of authority signed by both the head of the hospital or agency and by such other employees. All other circumstances of the making of the memorandum, record or photograph, including lack of personal knowledge of the making, may be proved to affect its weight, but they shall not affect its admissibility and (4) previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect.

As that subsection instructs, documentary evidence from hospitals "or any other public or private institution or agency" pertaining to "any condition, act, transaction, occurrence or event relating to a child" in an abuse or neglect proceeding is admissible "if the judge finds that [such evidence] was made in the regular course of . . . business . . . ." N.J.S.A. 9:6-8.46(a)(3).

"[T]he key to the admissibility of documents [in this context] is whether the evidence was created in the regular course of business." M.C. III, supra, 201 N.J. at 346 (internal quotation marks omitted). The Supreme Court instructed in M.C. III that the phrase "regular course of business" in Title 9 should be interpreted as identical to the corresponding phrase in the business records exception to the hearsay rule. Ibid. (referring to N.J.R.E. 803(c)(6)). In explaining the implications of that interpretation, the Court stated:

Under the business records exception to the hearsay rule, 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 method and circumstances of the preparation of the writing must justify allowing it into evidence.

[Id. at 347 (emphasis added) (internal quotation marks omitted).]

The Supreme Court has also promulgated a provision, Rule 5:12-4(d), permitting the Division to submit "reports by staff personnel or professional consultants." Such reports are also subject to the requirements of N.J.R.E. 803(c)(6) and 801(d). R. 5:12-4(d).*fn9

In M.C. III, the Court expressed concern that the record from the trial court did not contain any fundamental proof as to whether the documentary evidence from the hospital and the Division were used in the regular course of business of either entity. M.C. III, supra, 201 N.J. at 347. The Court did not reverse the trial court's finding because no objection had been made by defendant's trial counsel to the admitted documentary evidence, but it did express "the need to give some guidance for future cases" concerning the application of the business record hearsay exception in cases brought by the Division. Id. at 345.

To assess whether a document is permitted under N.J.R.E. 803(c)(6), a trial judge must conduct a N.J.R.E. 104(a) hearing to determine whether all criteria for admission, including trustworthiness, are met. See N.J. Div. of Youth & Family Servs. v. E.D., 233 N.J. Super. 401, 413-14 (App. Div.) (holding that, because no evidence was presented that a report from an out-of-state agency had been prepared in the regular course of business, it was not admissible under N.J.S.A. 9:6-8.46), certif. denied, 118 N.J. 232 (1989); see also State v. Matulewicz, 101 N.J. 27, 31 (1985) (holding that the admissibility of a State police chemist's report must be informed by an evidential record that addresses all relevant factors necessary to determine if it meets the trustworthiness necessary to justify admissibility).

In order to lay the foundation for a business record, the authenticating elements can be established through the testimony of an appropriate witness. See Konop v. Rosen, 425 N.J. Super. 391, 402-04 (App. Div. 2012) (finding that a consultation report was admissible, in part because the doctor who prepared it testified that he would routinely prepare such reports as part of his duties at the hospital). Further, the witness does not have to be an employee of the entity that owns and prepared the documents, and "the foundation witness generally is not required to have personal knowledge of the facts contained in the record." Hahnemann Univ. Hosp. v. Dudnick, 292 N.J. Super. 11, 17-18 (App. Div. 1996); see also N.J.S.A. 9:6-8.46(a) (noting that "lack of personal knowledge of the making" of a qualified business record "may be proved to affect its weight . . . but . . . shall not affect its admissibility"). Additionally, certain reports may be authenticated by submitting an appropriate certification. See N.J.S.A. 9:6-8.46(a)(3). There also must be no indication that the statements contained within the business record are untrustworthy. See N.J.R.E. 803(c)(6).

As a general proposition, our courts have often treated the Division's business records as inherently having "a reasonably high degree of reliability as to the accuracy of the facts contained therein." In re Cope, 106 N.J. Super. 336, 343-44 (App. Div. 1969); see also N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322, 350 (App. Div.) (noting the "reliability and authenticity of [Division] reports"), certif. denied, 192 N.J. 296 (2007). Nevertheless, our appellate courts have also confirmed, particularly in more recent opinions, that the law does not create a wholesale exception for the indiscriminate admission of hearsay evidence in Division cases. See, e.g., N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 133 (App. Div. 2010) (noting that Rule 5:12-4(d) does not "create an exception to the prerequisites for the admission of a business record set forth in N.J.R.E. 803(c)(6)").

Consequently, reports admitted pursuant to Rule 5:12-4(d) and other business records admitted pursuant to N.J.S.A. 9:6-8.46(3) are still subject to hearsay limitations, including those imposed by N.J.R.E. 805 concerning embedded hearsay statements and N.J.R.E. 808 concerning expert opinion included in a hearsay statement admissible under an exception. See, e.g., Cope, supra, 106 N.J. Super. at 343 (App. Div. 1969) (holding that "the [Division] should be permitted to submit into evidence, pursuant to [former] Evidence Rules 63(13) and 62(5), reports by [Division] staff personnel (or affiliated medical, psychiatric, or psychological consultants), prepared from their own first-hand knowledge of the case" (emphasis added)).

These cautionary principles were most recently reaffirmed and applied in M.G., supra, 427 N.J. Super. at 172-75. In that Title 30 guardianship matter, the trial court admitted and relied upon written reports by non-testifying psychologists, which contained opinions about the defendant parent and the child. Id. at 173-74. The psychologists were consultants retained by the Division to support its case that the defendant's parental rights should be terminated. Id. at 174. The subject matter of those reports involved "the exercise of subjective judgment rather than a straight forward, simple diagnosis based upon objective criteria or one upon which reasonable professionals could not differ." Ibid. The experts' opinions were sufficiently complex to raise questions about their admissibility in documentary form as impermissible hearsay under N.J.R.E. 808.*fn10 Ibid. Consequently, we concluded in M.G. that the trial court abused its discretion in permitting the Division to rely upon those written reports without producing the experts in court. Id. at 175.

In another recent case in the civil context, we found the trial court erred in admitting hearsay which was embedded in an otherwise admissible business record. See Konop, supra, 425 N.J. Super. at 404-06 (applying N.J.R.E. 805's prohibition against hearsay within hearsay).

In the present case, when the court admitted the documentary records over defendant's objections, the court appeared to only focus on whether the records qualified as business records, without consideration of whether those records also contained embedded hearsay or expert opinions. Compounding this problem, the court also did not make sufficiently clear to what extent it relied upon any such embedded hearsay in its analysis of the proofs (or, as noted above, to the extent it relied upon Garcia's hearsay testimony).

The limited nature of the trial court's analysis in admitting the records is illustrated in its ruling to admit P-1, the screening summary. The court observed that:

[a] screening summary is generally not considered hearsay . . . Rule 5:12-4(d) provides that DYFS shall be permitted to submit into evidence pursuant to N.J.R.E. 803(c)(6) and 801(b) reports by DYFS staff personnel or affiliated medical, psychiatric or psychological consultants prepared from their own firsthand knowledge of the case. Conclusions drawn from the facts stated therein shall be treated as prima facie evidence subject to rebuttal. A screening summary prepared by DYFS personnel falls within the business records exception and is therefore admissible. [Emphasis added.]

This categorical observation about screening summaries is not precisely accurate. As the Court instructed in M.C. III, supra, the record in that case was insufficient to determinate whether the screening summary in that case, and the related forms completed by the Division's medical expert, satisfied the standards for admissibility. 201 N.J. at 347. Here, the screening summary contains information from an unidentified "reporter" and no reasoning was offered by the court as to why such statements were not precluded by Rule 805.

To illustrate these concerns about the use of embedded hearsay and possible expert opinions in this case, we highlight the following sample excerpts from Exhibit P-4, as it is redacted in the record:

On 04/08/10 at 5:14 p.m. Julio Escobar (worker) arrived at Englewood Hospital. Worker met with Dr. ______________ and RN Supervisor. ____________ reported [D.G.] (mother) gave birth to a baby boy yesterday 04/07/10. [D.G.] and her newborn both tested positive for benzodiazepines. __________________ explained they were screened as they were not seen at Englewood Hospital and it was unclear about where [D.G.] had prenatal care. [D.G.] said she suffers from seizures and last week felt a seizure was coming as she had ringing in her ear and metallic taste in her mouth. [D.G.] reported she went to Dr. Elamir (neurologist) and obtained 2-3 samples of Ativan. __________________ found it to be suspicious that a doctor would give out samples of Ativan as it was a narcotic. _______________ explained narcotics need to be prescribed so that it could be tracked. Worker asked if the levels of the benzo's were high. ____________________ explained the levels were high enough to yield a positive result. __________________ believed it was a stretch for [D.G.] to test positive for benzo's if she took the Ativan last week.

On 04/12/10 at 3:45 p.m. worker called Englewood Hospital and spoke with ________________ RN. Nurse [] reported the newborn had feeding intolerance and was started on morphine today.

On 04/19/10 at 11:41 a.m. worker received a call from SW [A.M.] stating [the child] was still actively withdrawing and as a result wasn't going home anytime soon.

On 04/14/10 at 12:15 p.m. worker received an email from [L.A.] (nurse) with the nursing consultation attached to the email. The recommendations stated the child met the medically fragile criteria.

Several of these entries in the report convey statements to a case worker made by third parties such as a physician, nurses, and a social worker. Additionally, at least one of those statements -- an apparent medical opinion that it would be a "stretch" for the mother to test positive for benzodiazepines if she took Ativan the previous week -- is arguably a "complex" opinion that may be inadmissible pursuant to N.J.R.E. 808 and case law such as M.G., supra, and Konop, supra.

We have considered whether the admission of such embedded hearsay was harmful in this case. More specifically, we have considered whether the admission of a few of the underlying hospital records within Exhibit P-2, which do not involve the same concerns, cures any hearsay problems with the Division's own admitted records.

One problem with such a potential cure is that the certification of the authenticity of the hospital records submitted by the Deputy Attorney General was not accompanied, as N.J.S.A. 9:6-8.46 requires, with a photocopy of a delegation of authority signed by the head of the hospital and the correspondence secretary. Even assuming that such a delegation could be readily obtained and that its omission here was a simple oversight, there does appear to be a considerable amount of hearsay information derived from hospital personnel set forth in the Division's records, beyond the details set forth in Exhibit P-2. Although Exhibit P-2 does contain positive drug test results for defendant and her child, that proof alone may not have been the only medical proof within the records that the trial court considered. We simply cannot tell. The court's potential reliance upon inadmissible embedded hearsay and expert opinions may well be of consequence in this case, notably one in which no witness with personal knowledge about the relevant circumstances testified at trial.

We fully appreciate the practical difficulties and time pressures associated with trying Title 9 cases in a just and expeditious manner. We also are mindful, in fairness to the trial judge, that the published decision in M.G. was not issued until after the trial court's ruling in this case. Nor, for that matter, was our 2012 decision in Konop, which provides further guidance regarding the evidentiary treatment of embedded hearsay in business records.

Because the judge did not have the benefit of such precedent, and also given the important parental rights at stake, we choose to remand this matter to afford the judge and the parties the opportunity to re-examine this matter in light of M.G., Konop, and the related evidentiary precedents under the developing case law.*fn11 The judge shall issue a more detailed statement of reasons, both as to the court's evidentiary rulings in admitting the contested documents and Garcia's hearsay-based testimony, and more specifically explaining what portions of those documents and testimony were relied upon in reaching the disposition of the merits.

If the judge did not, in fact, rely upon Garcia's hearsay-based testimony, embedded hearsay statements in the records, or expert hearsay opinions in the records -- or if the judge did so rely but finds that, in light of the applicable precedents, those hearsay provisions have not been violated with respect to such embedded third-party statements and opinions -- the judge should make that explicit in the remand decision.

The remand proceedings and the trial court's amplified decision shall be completed by December 31, 2012, unless the judge advises this court by letter that additional time to complete the remand is reasonably necessary.

Remanded. Jurisdiction is retained.


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