The New Jersey Division of Child Protection and Permanency (DCPP) carries a heavy burden in presenting a case as to whether or not a parent is engaged in abuse or neglect of a child. The case of the NJDCPP v. N.B., the mother of a minor child, was recently appealed after a trial court founds that the mother had abused or neglected her twelve-year-old son. There were various issues as to the weight and credibility of the evidence presented, which the appellate court grappled with before ultimately overruling the trial court.
Facts
It all started when the biological father of D.B., who had been living with the mother at the time, filed a complaint about the child’s mother. The mother and her boyfriend had gotten into an argument, where the mother had said: “she was going to harm herself one of these days.” The law enforcement officers reported that D.B. had phoned an aunt after his mother left him alone in their shared hotel room and he was scared. The aunt came to retrieve the child and let him stay at her home for a time until the father picked him up. The police reached out to the mother to conduct a welfare check after hearing this report. N.B. agreed that there had been an argument, and she went for a drive to cool down for a few hours. She left her son at the hotel because he did not want to go for a drive. She confirmed that when she said she was going to hurt herself, it was simply a figure of speech and she did not really mean it.
In subsequent interviews, D.B. reported several other comments his mother made within the same vein, such as the mother telling her boyfriend, “since we are all here, why don’t you drive off the bridge and kill us all.” He also told the DCPP that the fights between his mom and boyfriend had been physical in the past, and he was fearful on that day that his mother would ‘go off on him’ when she got back to the hotel room. The mother denied this, as well as denied any physical altercations between herself and her boyfriend, asserting that their arguments were only ever verbal. Despite of this, the DCPP removed D.B. from his mother’s custody and placed D.B. in possession of his father.
During the investigation, the DCPP interviewed both the mother and boyfriend, who each confirmed that they wanted to ensure the family was reunited, and the mother confirmed she was not afraid of the boyfriend. The worker failed to interview the child or either party about the incident involving the hotel room, but included her portion of the investigation in a report submitted to the court.
D.B. was later evaluated by a licensed psychologist, who had also prepared a written report, which contained statements about D.B.’s exposure to violence between his parents. D.B. had told the psychologist that he felt nervous sometimes when he witnessed physical fights between his mother and her boyfriend. D.B. said he was no longer nervous or had any problems eating while he was living with his dad. The psychologist indicated that D.B. was likely suffering from post traumatic stress, and had experienced a lot of stress when living with his mother for the last two years. The psychologist ultimately recommended that D.B. have only limited phone contact with his mother.
During the trial, the intake worker had her testimony cut short due to an illness, and was never able to be cross-examined. As a result, the judge allowed her testimony to stand, albeit discounted in weight, over N.B.’s objections. The judge also allowed the supervisor to testify about the intake worker’s involvement, despite having no direct involvement with the case or discussing the situation with any of the parties. The mother also objected to the admission of the psychologist’s report, arguing that she had no opportunity to challenge it. She was overruled, and the report was admitted.
In light of all the evidence admitted, over objections, the trial judge held that although any suicidal verbalization by the mother might be insufficient to find abuse and neglect of D.B., her conduct was found to be grossly negligent when examining the aggregate of her behaviors, the domestic fights, and leaving D.B. alone in the hotel room. The judge believed the psychologist’s diagnosis credible as well.
No Corroboration on Statements
N.B. appealed, arguing that the judge’s findings were not supported by admissible evidence, and the judge could not rely on the psychologists’ conclusions. She argued primarily that the evidence was improperly admitted. For example, the trial court allowed statements made by the child to be admitted, even though it was hearsay. The trial court felt that the child’s statements had been sufficiently corroborated by the mother’s statements when she agreed that she had verbal disputes with her boyfriend and had admitted that she said she would hurt herself on the day of the hotel incident. The appellate court disagreed, finding that the mother’s statements did not sufficiently corroborate the statements concerning the child’s exposure to physical abuse – in fact, the mother denied any physical violence occurring at all.
D.B.’s behavior was also not corroborative. The psychologists report noted that D.B. had no thoughts of self- harm; had good hygiene; was cooperative; in a normal mood; and denied any problems with sleeping or eating. Although the trial court appropriately admitted the statements under the hearsay exception of a patient seeking treatment, this is not necessarily reliance that rises to the level of corroboration. New Jersey courts conclude that a mental health professional cannot determine the trustworthiness of a child’s hearsay statements, particularly in matters involving the DCPP. The appellate court also noted that even if there was some level of corroboration, mere exposure to domestic violence is not sufficient for a finding of abuse and neglect.
Psychologist’s Report
The appeals court also questioned the psychologist’s report and admissibility. Reports are admissible in DCPP matters if they are prepared for the purpose of guiding the Division in developing a course of action, and maintained in the regular course of business of the DCPP. If the expert who drafted the report is not produced as a witness, like in this case, then the expert’s opinion must be excluded unless there are specific findings as to the report’s trustworthiness, which involved determining the level of subjectivity and the complexity of the diagnosis. The New Jersey courts of appeal have held previously that opinions, like a diagnosis of PTSD and exposure of a child to violence in the home, is inadmissible hearsay. Therefore, the conclusion of the report should not have been admitted at the trial court level, particularly in light of the fact that the DCPP did not call the doctor as a witness.
In fact, it was noted that the bulk of the fact-finding portion of the hearing was paper-based. The only person who testified was the supervisor, who lacked any direct knowledge of the matter at all. The court of appeals held that, as a result, the trial court’s ruling was not based on sufficient, competent evidence to find abuse and neglect by the mother.
When cases involving child abuse and neglect appear before the court, it is no doubt tempting for courts to want to err on the side of caution and be more prepared to accept any evidence of abuse, in an effort to thwart any potential harm to the child. This case shows that there must be a balance struck between the seriousness of preventing child abuse, and the seriousness of maintaining viable familial relationship between children and their parents. NJDCPP should not get a ‘free pass’ when it comes to proving up their case. If you have a NJ family law matter, call the Law Offices of Peter Van Aulen at (201) 845 -7400 today for a consultation.