June 20, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
D.E.J., Respondent-Appellant. IN THE MATTER OF A.F.G.E.L., a minor.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2012
Remanded November 13, 2012
Resubmitted June 3, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-354-10.
Joseph E. Krakora, Public Defender, attorney for appellant (Arthur David Malkin, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Joyce Calefati Booth, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.F.G.E.L. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
Before Judges Sabatino, Fasciale and Maven.
This Title 9 abuse and neglect case returns on appeal, following a remand we directed in November 2012. The remand called for the trial court to reexamine this matter, in light of significant evidentiary issues relating to hearsay factual statements and opinions embedded within documentary evidence that the court had admitted, over defendant D.E.J.'s objection, at the 2010 fact-finding hearing. On remand, the trial court issued a supplemental opinion discussing those evidentiary issues and reiterating its conclusion that defendant had abused and neglected her child, A.F.G.E.L. ("the child"), as the result of defendant's ingestion of drugs during her pregnancy which led the child to test positive for drugs at birth and exhibit withdrawal symptoms.
Defendant now renews her appeal, contending that the trial court's remand opinion continues to misapply principles of evidence and that the findings of abuse and neglect against her thus lack a proper evidentiary foundation. Defendant also relies upon the Supreme Court's recent opinion in New Jersey Department of Children & Families v. A.L., 213 N.J. 1, 22-23 (2013), holding that a mother's drug use during pregnancy and the presence of drugs in an infant's body at birth is not sufficient, in and of itself, to sustain an allegation of abuse or neglect.
Although it continues to appear that portions of the documents admitted at trial contained inadmissible hearsay, we are now satisfied, with the benefit of the court's remand decision, that the record otherwise is sufficient to support the court's ultimate finding of abuse and neglect. The admission of the hearsay in this instance was harmless, as there is sufficient admissible proof that the child suffered from withdrawal symptoms after birth and that the mother's conduct violated the Title 9 statute as it now has been construed in A.L. Consequently, we affirm.
We incorporate by reference the factual and procedural history of this case as set forth in our November 2012 unpublished opinion, New Jersey Division of Youth & Family Services v. D.E.J., No. A-1163-11 (App. Div. Nov. 13, 2012). For ease of reference, we summarize portions of that background. We also recount certain procedural and case law developments that have since occurred.
D.E.J. is the mother of four children, all of whom, including A.F.G.E.L., have been adopted. Aside from the instant circumstances involving A.F.G.E.L., the record indicates without contradiction by defendant, that she was substantiated for abuse or neglect as to two of her other children due to the fact that they had both tested positive for drugs at birth.
Defendant gave birth to A.F.G.E.L. on April 7, 2010 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 of Youth and Family Services ("the Division") launched an investigation. D.E.J., supra, slip op. at 3.
According to a Division case worker's report, the hospital staff perceived that the child had a feeding intolerance, which the Division's hearsay reports identified as a symptom of withdrawal, and the child was therefore put on a regimen of morphine. The child continued to be treated at the hospital and, as indicated in the Division's case worker's report, was classified as medically fragile. Ibid.
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.,  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. Id. at 3-4.
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 of drugs. Id. at 4.
Prior to the scheduled abuse or neglect fact-finding hearing, counsel for D.E.J. 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,  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 proceeding, the judge overruled the defendant's objections and admitted the Division's exhibits in their entirety. Id. at 6.
Judy Garcia, a Division case worker, was the sole witness called by the Division at the fact-finding hearing. On direct examination, Garcia testified, based upon reports that she had reviewed, that both defendant and A.F.G.E.L. had tested positive for benzodiazepines after the child's birth. Garcia also asserted that exhibits P-1 and P-3 through P-6 were all Division records made in the ordinary course of business. Ibid.
On cross-examination, Garcia conceded 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. Garcia also admitted that she had no personal knowledge of the circumstances that had precipitated this case, other than what she had read in the records. Id. at 6-7.
In light of Garcia's acknowledgment that she lacked personal knowledge, defense counsel moved to strike her entire testimony from the record. The 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." The judge stated that she would "place the appropriate weight on the information." Id. at 7.
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. Id. at 8.
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 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 A.F.G.E.L. 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 indicating that the child had exhibited withdrawal symptoms, including jittery behavior, irritability, and excessive sucking. In addition, the judge noted defendant's past history of drug abuse and the lack of evidence that she completed a substance abuse treatment program. Ibid.
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.
The trial court subsequently approved the Division's permanency plan of the child, which contemplated the termination of defendant's parental rights and adoption of the child by F.L. The Title 9 litigation was closed in September 2011. Id. at 9.
On appeal from that ruling, defendant argued that the trial court's findings of fact must be vacated because the Division did not present "competent, material and relevant evidence" to support the court's findings, pursuant to N.J.S.A. 9:6-8.46(b). Id. at 9-10. Specifically, defendant contended that the judge improperly admitted, in their entirety, exhibits P-1 through P-6 presented by the Division, despite the fact that those records contained numerous third-party statements from persons who did not testify. Defendant argued 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 factual statement meets a hearsay exception. Defendant also contended that the trial court misapplied the special evidence provisions set forth in N.J.S.A. 9:6-8.46(a) and in Rule 5:12, applicable in litigation brought by the Division. Id. at 10.
On initial review, we elected to remand the matter because the trial court's decision to admit the State's documentary records over defendant's objection essentially had focused upon whether the records qualified as business records, without expressly considering whether those records impermissibly contained embedded hearsay factual statements or opinions. Id. at 21. We deemed these embedded hearsay issues particularly important in this case, because no witness with personal knowledge about the relevant circumstances had testified at trial. Id. at 25.
With respect to P-1, the screening summary, we noted that the trial court had not addressed the fact that the screening summary contained information from an unidentified "reporter, " without discussing why such statements were not precluded by N.J.R.E. 805. Id. at 22. We identified similar concerns with P-3, the Division's investigation summary, and P-4 through P-6, the Division's medically fragile assessment reports. Id. at 22-23. This court also noted that the information in P-4 through P-6 was derived from information obtained from patient charts and a hospital nurse, rather than from the personal knowledge of the entrant. Id. at 5-6. Additionally, we expressed concerns that the certification accompanying the hospital records, which was intended to authenticate those records, did not include the requisite photocopy of a delegation of authority signed by the head of the hospital and the correspondence secretary, as required by N.J.S.A. 9:6-8.46(a). Id. at 24. We further noted that it was unclear from the record the extent to which the trial court had relied upon Garcia's hearsay-based testimony. Id. at 21.
Our remand was also prompted by the fact that recent reported cases, which postdated the 2010 fact-finding hearing in this case, had cautioned about the evidential use of embedded hearsay and expert testimony within business records. See N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J.Super. 154 (App. Div. 2012); Konop v. Rosen, 425 N.J.Super. 391 (App. Div. 2012). In light of that recent case law, we provided the trial court an opportunity to consider its implications, if any, for the present case:
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 reexamine this matter in light of M.G., Konop, and the related evidentiary precedents under the developing case law. 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.
[D.E.J., supra, slip op. at 25-26.]
After receiving further submissions from the parties addressing the evidentiary issues, the trial judge issued an eight-page supplementary written decision on February 20, 2013. In that post-remand decision, the judge discussed all nine documentary exhibits that had been admitted during trial and explained the respective weight which she afforded them.
The judge explained that in reaching her initial decision she had relied almost exclusively upon three evidentiary items: (1) portions of the hospital records noting positive drug screens, P-2; (2) the division's medically fragile assessment Reports, P-4 through P-6; and (3) a "small portion" of Garcia's testimony. The judge stated that the remaining items of evidence offered by the Division "did not weigh heavily on the [c]ourt's decision."
The judge further explained that:
In making the finding of abuse and neglect against . . . [d]efendant, this court took judicial notice of the mother's long standing drug abuse history but more importantly, relied almost exclusively upon the positive drug screens and the Division's [m]edically [f]ragile [a]ssessment reports which documented that the minor child exhibited signs of withdrawal for more than a month after birth.
Having thus clarified the evidentiary foundation for her analysis, the judge reiterated her conclusion that the Division had sustained its burden of proving that defendant had abused and neglected A.F.G.E.L. The judge reasoned that the infant's positive drug tests and withdrawal symptoms were sufficient to sustain an abuse and neglect finding. The judge further noted that her reasoning was consistent with the Supreme Court's recent opinion in A.L., supra, 213 N.J. at 22, in which the Court noted that "proof that a child is suffering from withdrawal symptoms at birth could establish actual harm" for purposes of the Title 9 abuse or neglect criteria.
On her renewed appeal, defendant continues to argue that the trial court improperly relied upon inadmissible hearsay proof, despite the judge's post-remand disavowal of such reliance, and that the record is thus insufficient to sustain the findings made against her. The Law Guardian and Division, on the other hand, reiterate their common position that the court's decision was sound and must be affirmed.
Having examined the record and these legal issues a second time, now with the benefit of the trial judge's very helpful supplemental opinion, we agree that the finding of abuse and neglect in this case should be affirmed. Although we continue to have concerns about certain hearsay statements embedded within the medically fragile assessment reports, our concerns do not rise to a level to warrant reversal. For the reasons we now explain, the admission of that particular hearsay-within-hearsay proof was harmless, in light of this evidential record when it is fairly considered as a whole.
In her reexamination of the evidence, the trial judge recognized that Garcia, the sole witness for the Division, lacked personal knowledge of the case prior to May 2010 and, therefore, appropriately noted that Garcia's testimony was of limited value. The judge stated that she relied upon Garcia's testimony for two purposes. First, Garcia's testimony was admissible to the extent it concerned events after May 2010.Second, the judge accepted Garcia's testimony to the extent that it laid an evidentiary foundation for treating the Division's records as having been made in the ordinary course of business. See N.J.R.E. 803(c)(6). More specifically, Garcia's testimony was sufficient to lay the foundation for P-1, P-3, and P-4 through P-6 as business records. We agree that Garcia's testimony was properly admissible for the purposes described by the trial court. See Hahnemann Univ. Hosp. v. Dudnick, 292 N.J.Super. 11, 17-18 (App. Div. 1996) (noting that "the foundation witness generally is not required to have personal knowledge of the facts contained in the record"); 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 is weight . . . but . . . shall not affect its admissibility").
Exhibit P-2 (hospital records)
The trial judge's supplemental decision made clear that she had relied upon the hospital records, exhibit P-2, to the extent that they revealed positive drug screens. In assessing whether such records were admissible, the judge amply dealt with two potential areas of evidentiary concern.
First, the judge acknowledged that the Division did not submit to the court until late in the trial process the statutorily-required foundational certification from the hospital's correspondence secretary. Moreover, the judge recognized that the certification had not been accompanied by the necessary delegation of authority. The judge did not, however, find that omission dispositive, because this court's "opinion remanding this matter . . . d[id] not state that it considered this [defect to be] an ultimate bar to the [records'] overall admissibility and, ultimately, their ability to be considered competent, material evidence."
Although N.J.S.A. 9:6-8.46(a) instructs that hospital record certifications "shall be accompanied" with the appropriate delegation of authority, there is no assertion by defendant that the Division would have been unable to furnish such a delegation of authority. As the Division argues, "this was a technical oversight" which "did not in any way effect the trustworthiness of the medical records." We agree that there is no need to compel that ministerial step at this stage of the litigation, absent any contention that the hospital's correspondence secretary truly lacked the delegated authority to submit her certification to the court.
With respect to the critical contents of P-2, the positive drug screens, the judge reasoned that "the relatively simple reading of either a positive or negative outcome" of a drug screen does not mandate expert testimony at trial, pursuant to N.J.R.E. 808. We accept the judge's observation within the context of this Title 9 litigation.
The objective diagnostic nature of a drug screen is qualitatively different from the expert opinions in M.G., supra, that had previously caused this court concern. The drug screens in the present case, expressed in the form of generic numeric blood concentrations, do not substantially involve "the exercise of subjective judgment" that existed in M.G. 427 N.J.Super. at 174. Our opinion in M.G. had expressed concerns over the trustworthiness of a psychologist's opinions because that expert consultant had been retained by the Division after litigation had already been initiated. Ibid. Here, by contrast, it was the hospital that referred this matter to the Division and eventually prompted the Division's decision to pursue Title 9 litigation against the mother.
Exhibits P-4 through P-6 (the Medically Fragile Assessment Reports)
Out of the specific evidence relied upon by the trial court, only the medically fragile assessment reports, P-4 through P-6, contain proof that A.F.G.E.L. suffered from withdrawal as a result of his prenatal drug exposure. Those reports were each prepared by a Division nurse, two of whom were involved here. On the front page of those reports, they state that the information contained within was obtained from patient charts and from a hospital nurse, Ann Nestman. The child's patient charts, apparently consulted by the Division's nurses, were not attached to the reports, nor were they otherwise included in the trial record. Nurse Nestman, who apparently provided certain information orally to the Division nurses, did not testify at trial. Nor did the Division nurses who prepared the medically fragile assessment reports.
Several of the statements within the medically fragile assessment reports do indicate the sources of the information being conveyed. However, other statements do not reveal the person or document comprising the source of that information. Those statements conceivably might have come from a Division nurse's own observations of the child at the hospital; however, that inference seems foreclosed by the notation on the front page of the reports indicating that the sources of information were the patient chart and Nurse Nestman, rather than from the Division nurses' direct observations.
In pondering this hearsay problem on remand, the trial judge first reiterated her generic observation that the medically fragile assessment reports were Division records and thus should be admitted pursuant to Rule 5:12-4(d) and N.J.R.E. 803(c)(6). The judge did acknowledge that "[a] small portion of these documents contain embedded hearsay in the form of expert opinion." However, the judge reasoned that the circumstances surrounding any expert opinions expressed by the hospital nurse made them admissible under N.J.R.E. 808 and, therefore, did not require the hospital nurse's trial testimony. The judge noted that "[a]lthough litigation had begun, the hospital nurse did not have any motive or interest that would indicate her opinion is untrustworthy. Additionally, the opinion's complexity did not rise to such a level as to warrant cross-examination."
We agree with the trial judge's Rule 808 analysis with respect to expert opinions conveyed by the hospital nurse, but recognize that the analysis does not fully address the admissibility of all of the hearsay embedded within the medically fragile assessment reports. A proper analysis of the admissibility issue must also consider that Nurse Nestman (and perhaps also Dr. Delgado and other medical staff at the hospital) apparently provided the Division's nurses not only with their opinions, but also their factual observations about the child's condition and behavior. Those factual observations, if considered for their truth, cannot pass through the special hearsay exception in Rule 808 for expert opinions embedded within an otherwise-admissible hearsay statement. Cf. N.J.R.E. 703 (noting that "facts or data" may be referred to within a testifying expert's opinion, if they are reasonably relied upon by other experts in the field, but such facts are not to be considered for their truth). As a result, Rule 808 does not provide a complete solution to the hearsay-within-hearsay problem presented here.
We also cannot lose sight of the fact that portions of the medically fragile assessment reports convey oral statements made by a hearsay declarant (Nurse Nestman, Dr. Delgado, and other individuals) to other hearsay declarants, the Division nurses, who then paraphrased those statements in their own report. The same multiple-hearsay chain exists with respect to information that the Division nurses read from hospital charts and then paraphrased, apparently in their own words, in the medically fragile assessment reports that they authored.
The Division has not identified any hearsay exception that authorizes the substantive consideration of hearsay statements received by a Division nurse from other declarants and then paraphrased into a Division nurse's own written report. This practice of paraphrasing the words of other declarants injects a serious risk of inaccuracy in the trial record. The practice of parroting hearsay sources without a proper evidentiary foundation also runs counter to N.J.R.E. 805, which instructs that hearsay within hearsay is admissible only if the embedded "[hearsay] statement itself meets the requirements of an exception to [N.J.R.E.] 802." See also State v. Frisby, 174 N.J. 583, 591-93 (2002) (disallowing the admission of indirect hearsay from declarants who were interviewed by a police detective); In re Guardianship of Cope, 106 N.J.Super. 336, 343 (App. Div. 1969) (calling for "first-hand" knowledge by the authors of Division reports).
We discourage the Division, and the Deputy Attorneys General who represent them in Title 9 and Title 30 litigation, from placing evidential reliance upon such embedded and undocumented hearsay in the future. Our concern would be resolved, for example, if the Division nurse authoring a medically fragile assessment report accurately quotes from statements made in the patient's chart, or operative report, or some other admissible hospital business record. The nurse's medically fragile assessment report could be substantiated by attaching the original sources of the report and laying the foundation for the admissibility of such sources as business records, either by testimony or by providing the necessary certification.
We by no means wish to make it unduly burdensome for the Division and its attorneys to present their cases. We certainly are not suggesting that every nurse or doctor who has treated an abused or neglected child must testify for the Division in court. Nevertheless, there are legitimate and practical ways to obviate these significant hearsay concerns, in the interest of providing the trial court with sound evidence and doing so in a manner that is fair to opposing counsel.
The key, we suggest, is for the Division and its attorneys to be attentive to embedded hearsay statements within documentary exhibits that may bear upon any critical disputed issues in a case. Where, as here, an objection by defense counsel is timely raised, the proponents of such proof must assure that appropriate links of admissibility within the hearsay chain are provided, thereby enabling the substantive contents of such proof to be relied upon for their truth by the trial court. We leave it to the trial court, of course, to assess the weight of such admissible hearsay, and whether it is sufficiently persuasive to satisfy the Division's overall burden of proof.
That said, despite our lingering reservations about certain portions of the medically fragile assessment reports in this record, we are satisfied that the competent evidence as a whole in this case supports the trial court's ultimate finding of abuse and neglect. In this regard, we are mindful of the Supreme Court's recent observation in A.L. that "not every instance of drug use by a parent during pregnancy, standing alone, will substantiate a finding of abuse and neglect[.]" A.L., supra, 213 N.J. at 23. The Court reiterated, however, that even "[i]n the absence of actual harm, a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." Ibid. Moreover, "[p]roof that a child's mother frequently used cocaine or other dangerous substances during pregnancy would be relevant to that issue." Ibid. (emphasis added).
Here, there is a reasonable basis in the admissible portions of the record to conclude that defendant's repeated illegal drug use rose to the level of creating an imminent risk to A.F.G.E.L. The record indicates that D.E.J. gave birth to two other children who were born testing positive for drugs. Despite the concerns we have raised about certain aspects of exhibits P-4 through P-6, there is sufficient admissible evidence of A.F.G.E.L.'s post-birth withdrawal symptoms, including expert opinions, to support the trial court's finding of abuse and neglect. Indeed, the undisputed fact that the hospital kept A.F.G.E.L. for over five weeks because of his fragile post-birth condition provides further corroboration of the Division's contention that he had been abused and neglected. The record also indicates that the mother further placed A.F.G.E.L. at risk by failing to comply with the Division's requests that she attend Substance Abuse Evaluations and submit urine samples after his birth.
The trial court's finding of abuse and neglect, as amplified in its remand decision, is therefore affirmed.