NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

M.H.,

Defendant-Appellant.

IN THE MATTER OF A.H.,

a Minor.

December 18, 2013

Submitted December 3, 2013 Decided

Before Judges Alvarez and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-154-11.

Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Patricia Parker, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor (Charles Ouslander, Designated Counsel, on the brief).

PER CURIAM

Defendant M.H. appeals from the February 25, 2011 order entered after a fact-finding trial, determining by a preponderance of the evidence that she abused or neglected her young child, A.H. Specifically, the court found that M.H. placed A.H. at substantial risk of harm when she left the child unsupervised on a twin size bed without rails while fighting with another resident of the homeless shelter where she was residing. M.H. argues that the determination was not supported by substantial credible evidence, that at most her conduct was merely negligent, and that the judge erred by relying on documentary and hearsay evidence. The law guardian supported the finding of the trial court and, on appeal, joins the New Jersey Division of Youth and Family Services (Division) in urging this court to affirm. After reviewing the record in light of the contentions advanced on appeal, we affirm.

I.

We discern the following facts from the record. A.H. was born in late January 2010. Earlier that month, the Division became involved with M.H. when it received a referral from a social worker at Beth Israel Medical Center, where she was receiving prenatal care. Division caseworkers met with M.H. to investigate the report that she was "verbally abusive" to hospital staff, had suicidal thoughts, and threatened to discontinue her prenatal care. M.H. admitted to the caseworkers that she was once diagnosed with bipolar disorder and schizophrenia. The Division connected M.H. with New Start, an agency that provides case management services to mentally ill patients. It also scheduled a psychiatric assessment for M.H. at UMDNJ. M.H. was amenable to the Division's recommendations. Following A.H.'s birth, the Division offered to provide her with home health aide services to ensure that the baby was properly cared for at home. An intake worker reported that M.H. was initially reluctant to accept these services, but eventually agreed.

The Division, however, continued to receive numerous referrals expressing concern about defendant's conduct and her ability to properly care for her young child. Tashira Glenn was the caseworker assigned to the case beginning in February 2010. Glenn testified that while assigned to the case she received ninety-seven referrals, most of which expressed parenting concerns. Several of the referrals appeared unfounded. Nonetheless, by March 2010, three different health aides had been sent to defendant's home, and the Division received a report that M.H. was refusing to let an aide into her apartment.

On September 20, 2010, the Division received a referral from M.H.'s therapist, expressing concern that M.H. appeared unstable. Glenn investigated, and upon arriving at M.H.'s apartment she noticed that M.H. had written on her neighbor's door "[M.H.] loves Luis. Fuck off." M.H. told Glenn she contacted the therapist because she felt "overwhelmed" and "needed someone to talk to." M.H. confirmed that she was considering adoption because she did not have support from family and friends. Shortly thereafter, the therapist again contacted the Division because M.H. was sending her abusive text messages. The Division subsequently referred M.H. to a psychiatrist, and M.H. agreed to seek treatment for her mental health issues.

On September 30, 2010, the Division received a third report from the therapist expressing additional concerns, prompting the Division to again investigate. When caseworkers arrived, A.H. was asleep in her bassinet, which she appeared to have outgrown. M.H. admitted that A.H. needed a new crib, but claimed she could not afford to purchase one. The caseworker offered to assist. At that time, A.H., appeared to be appropriately cared for, happy, and healthy.

On October 6, 2010, Dr. Andrew Brown, the therapist's supervising psychologist, wrote the Division out of "concern for the welfare of . . . [A.H.]." The basis of Dr. Brown's concern included M.H.'s psychiatric diagnosis of bipolar disorder, her repeated refusal of psychiatric treatment for her symptoms, and her tendency to "self-medicate" with alcohol. Based on his evaluation of M.H., Dr. Brown opined that A.H. was "endangered" while in M.H.'s physical custody.

On October 13, 2010, M.H. and her daughter were placed at "Project Solution," a homeless shelter for mothers with children. On November 4, 2010, the Division received a report from Delores Wright, an employee of the shelter, advising the Division that M.H. had been discharged for "fighting" another resident. Wright reported that M.H. attempted to "use her baby as a shield" during the incident. Wright also stated that M.H. left the baby alone in her room for approximately thirty minutes while she engaged in the altercation.

When the Division learned of this incident, it initiated proceedings to remove A.H. from M.H.'s custody, specifically "because [M.H.] admitted that she left the child unattended and due to [M.H.]'s history." The Division located A.H. at the hospital where M.H. went to be treated for her injuries, and placed A.H. in an approved foster home.

On November 9, 2010, the Division filed an order to show cause and verified complaint seeking care, supervision and custody of A.H., pursuant to N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12. The complaint was based on defendant's actions during the altercation at the shelter, as well as the Division's continued involvement with defendant, including its concerns about her mental health issues and her ability to parent A.H. The court conducted a hearing on the application, at which M.H. and caseworker Glenn testified. Judge Stephen J. Bernstein granted the Division's application, finding that removal of A.H. was necessary due to "imminent danger to [her] life, safety or health." M.H. admitted to leaving the child unattended "for an hour" while M.H. engaged in a fight. The court also found that continuation of residency in the home would be inappropriate, given M.H.'s history of "loud, verbal outbursts" throughout her involvement with the Division. The court also questioned "[M.H.]'s mental capabilities and her ability to parent her child independently." Judge Bernstein granted M.H. weekly visitation rights.

At the December 16, 2010 return on the order to show cause, the Division noted that M.H. had completed a comprehensive psychological assessment. Consequently, medication treatment, individual therapy, anger management treatment, parental training, and participation in an extensive parental fitness program were all recommended. The Division claimed to have experienced "some problem[s]" during M.H.'s assigned visitation hours, and informed the court that M.H. had to be escorted from the Division offices by police on two occasions. M.H. challenged the allegations in the complaint, and requested a fact-finding hearing. The court set the matter for fact-finding on February 3, 2011.

The February 3, 2011 fact-finding hearing was adjourned due to the unavailability of a Division witness. However, the Division moved to temporarily suspend M.H.'s visitation rights. The Division produced a police officer in support of its motion, who testified that M.H. was "combative with . . . [Division] caseworkers" during a recent visit with her daughter. The officer stated that he observed M.H. "with her fist back holding the baby in her left arm . . . as if she was going to hit . . . [a] nurse" attending to A.H. M.H. had to be escorted from the office by two police officers. Based on the officer's testimony, the court suspended visitation for two weeks, finding that M.H.'s outburst "could have [caused] a serious injury to the child." Judge Bernstein instructed the Division to reinstate visitation when M.H. complied with its services.

A two-day fact-finding trial was held on February 24 and 25, 2011. The Division introduced various documents, reports, and referrals as exhibits P-1 to P-14 and P-16 to P-24. Counsel for M.H. objected to all of the documents introduced by the Division except for portions of P-13, an investigation summary; P-14, a Division contact sheet; P-24, a psychiatric report; and Division reports P-16, P-17, and P-19. The Division also introduced testimony from caseworker Glenn, caseworker supervisor Belinda Coleman, and Wright, the shelter employee. M.H. also testified.

Glenn elaborated on M.H.'s history with the Division. She first became involved with M.H. in February 2010, after the Division received a referral from a local hospital, advising that M.H. was exhibiting "aggressive behavior." The Division referred M.H. at that time to New Start but New Start was unable to reach M.H. Glenn testified that M.H. received psychiatric evaluations, therapy, and parent aide services from a number of different agencies. She characterized M.H.'s compliance with these services as "sporadic." In particular, M.H. had difficulty getting along with the parent aides and, on some occasions, asked the aides to sign paperwork stating that they had visited M.H. when no visit had occurred.

Glenn testified that in early November 2010, the Division received a referral that M.H. was residing in a homeless shelter and had been involved in an altercation with another resident. The referral stated that M.H. "left [A.H.] unattended" during the incident and at one point, "used . . . [A.H.] as a shield." On November 5, 2010, Glenn met with M.H. at St. Michael's Hospital. M.H. informed Glenn that she was involved in an altercation with another resident, but was adamant that the other resident was the initial aggressor.

However, M.H. admitted to Glenn that she had left A.H. alone in her bedroom during the altercation. To Glenn's knowledge though, M.H. had not used A.H. as a shield. The Division decided to remove the baby from M.H.'s custody on the grounds of "inadequate supervision," because M.H. "left the child unattended[,] and due to [M.H.'s] history." Glenn testified that on "several" occasions M.H. had exhibited violent behavior. Glenn discussed a particular incident at the Newark Health Department, in which M.H. became "very irate, [and] verbally abusive" to a staff member, to the extent that she "had to be asked to leave the building." M.H. had also verbally threatened Glenn, using "foul language," on two separate occasions.

Glenn's supervisor, Belinda Coleman, testified regarding an interview she conducted with M.H. in November 2010, shortly after the incident at the shelter. M.H. confirmed to Coleman that A.H. was in "the bed" during the altercation, but denied using A.H. as a shield. When Coleman asked for clarification of what M.H. meant by "the bed", M.H. "indicated that . . . the baby was in [a] twin size bed" with no guardrails. M.H. informed Coleman that A.H. was sleeping alone in the room for an hour, and that M.H. was unable to check on A.H. because M.H. was "laid out on the floor" outside of the room "badly beaten."

Dolores Wright, a director at Project Solution, testified that she observed M.H. fighting with another resident of the shelter for approximately "[thirty] minutes in the hallway," leaving A.H. unattended. According to Wright, M.H. and the other resident were already arguing when Wright began her routine inspection of the facility that morning, and that the fight became physical at approximately 9:00 a.m. Wright initially attempted to intervene, but grew concerned for her own safety as the fight escalated. She testified that M.H. was acting like a "mad woman" and was "really violent." She added that M.H. and the other shelter resident were "physical[ly] violen[t], biting, [and] scratching" each other. Wright observed that M.H. initiated the dispute and was the aggressor, and that she ignored Wright's demands to stop fighting. At one point, Wright observed M.H. holding A.H., while "still trying to fight with the [other resident]." Wright added that M.H. had contacted her three times in the week before trial, threatening to "kill [her]" if she came to court to testify.

M.H. admitted to the altercation at the shelter. She testified that on November 2, 2010, she awoke around 7:00 a.m. to use the restroom across the hall. She locked the door to her room because A.H. was asleep in her crib. When M.H. exited the bathroom, the other resident began assaulting her. She claimed that Wright, who had been present, then walked away, and M.H. and the other resident briefly stopped fighting. The other woman again began to attack her, "pull[ing] [her] hair" and "punching [her]" in the head and face. The incident ended when police eventually arrived and transported M.H. to the hospital for treatment.

M.H. indicated that the altercation was actually three attacks separated by "probably . . . at least five minutes," but she was unable to estimate the total length of the incident. Meanwhile, A.H. was apparently asleep in her room. However, M.H. could not confirm that A.H. was asleep for the entirety of the incident, because she misplaced her keys during the fight and was locked out of her room.

At the conclusion of the hearing, Judge Bernstein issued an oral decision finding Wright "credible and . . . believable," and that M.H. was the aggressor. The court cited M.H.'s "long history" of aggression, stating that her prior "fights with [Division] caseworkers" and recent threat to Wright supported Wright's version of events. The court also addressed M.H.'s past involvement with the Division, observing that the record was "fraught with . . . mental health issues that exist here." The Division "clearly . . . knew [M.H.] needed services" and had attempted to provide M.H. with mental health and anger management services for a year, which at that point "obviously" had not been successful.

Judge Bernstein found that M.H.'s testimony was not credible, in part because it differed from the testimony provided by other witnesses. He questioned M.H.'s claim that she locked the door to her bedroom to use a restroom immediately across the hall. The judge further noted that M.H. had ample opportunity to return to her room and contact the police because the fighting stopped twice. Instead, he found that M.H. "did nothing to find any safety for herself or the baby[,]" and continued to fight "for up to an hour."

The judge concluded that A.H., meanwhile, was "left on a bed without any guards," exposing her to a "substantial risk of harm." Thus, he found the Division proved by a preponderance of the evidence "that there was neglect in . . . leaving [A.H.]" unattended. The court's decision was memorialized in a fact-finding order on February 25, 2011.

M.H. temporarily regained weekly visitation rights at a compliance review hearing on May 26, 2011, pending her cooperation with court-ordered mental health treatment. However, in August 2011, M.H. was incarcerated on charges stemming from her "assaultive behavior. On August 23, 2011, the Division requested an emergent hearing seeking to suspend her visitation rights due to concerns about her "verbally abusive" and "assaultive" behavior, which relief the court granted. Defendant was still incarcerated as of March 15, 2012, when the court held a permanency hearing and approved the Division's permanency plan of termination of parental rights followed by adoption, and ordered the Division to file a guardianship complaint.

After the Division initiated the guardianship proceeding, Judge Bernstein dismissed the Title Nine proceeding on May 14, 2012. This appeal followed.

II.

On appeal, M.H. argues that the trial court erred in finding that the Division proved abuse or neglect by a preponderance of the competent, material and relevant evidence. M.H. also argues that the trial judge erred in relying on incompetent and unreliable hearsay evidence, including evidence of her mental health, and numerous unfounded referrals.

A.

The trial judge has a duty to conduct a fact-finding hearing to determine whether the Division has proved abuse or neglect "by a preponderance of the competent, material and relevant evidence." N.J. Div. of Youth & Family Servs. v. C.H., 428 N.J. Super. 40, 62 (App. Div. 2012). "Under the preponderance standard, a litigant must establish that a desired inference is more probable than not. If the evidence is in equipoise, the burden has not been met." Liberty Mut. Ins. Co. v. Land, 186 N.J.163, 169 (2006) (citations and internal quotation marks omitted).

Our Supreme Court has set forth the standards that govern our review of abuse or neglect matters as follows:

[A]ppellate courts defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record. Indeed, we recognize that [b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.

[N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (second alteration in the original) (citation and internal quotation marks omitted).]

"[I]f there is substantial credible evidence in the record to support the trial court's findings, we will not disturb those findings." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010). However, "if the trial court's conclusions are 'clearly mistaken or wide of the mark[,]' an appellate court must intervene to ensure the fairness of the proceeding." Id. at 227 (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). We owe no deference to the trial court's legal conclusions, which we review de novo. State v. Smith, 212 N.J. 365, 387 (2012) (citation omitted), cert. denied, __ U.S. __, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).

An "abused or neglected child" means, in pertinent part, a child under the age of eighteen

whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care . . . or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]

[N.J.S.A. 9:6-8.21(c)(4)(a), (b).]

Interpreting N.J.S.A. 9:6-8.21(c)(4)(b), our Supreme Court held that mere negligence does not trigger the statute. Dep't of Children & Families v. T.B., 207 N.J. 294, 306-07 (2011); G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-78 (1999). Rather, the failure to exercise a minimum degree of care "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." T.B., supra, 207 N.J. at 305 (quoting G.S., supra, 157 N.J. at 178).

Although the distinction between willful or wanton negligence and ordinary negligence cannot be precisely defined, McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970), the essence of willful or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." G.S., supra, 157 N.J. at 179 (citations omitted). Further, willful or wanton conduct is that which is "done with the knowledge that injury is likely to, or probably will, result[,]" and "can apply to situations ranging from 'slight inadvertence to malicious purpose to inflict injury.'" Id. at 178 (citations omitted). However, if the act or omission is intentionally done, "whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant," and "[k]nowledge will be imputed to the actor." Ibid. (citation omitted).

A determination of whether a parent's or guardian's conduct "is to be classified as merely negligent, grossly negligent, or reckless can be a difficult one." T.B., supra, 207 N.J. at 309. "Whether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation." G.S., supra, 157 N.J. at 181-82. "When a cautionary act by the guardian would prevent a child from having his or her physical, mental or emotional condition impaired, that guardian has failed to exercise a minimum degree of care as a matter of law." Id. at 182. The mere lack of actual harm to the child is irrelevant, as "[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citation omitted).

Here, M.H. argues that the finding of neglect cannot be sustained because her conduct was unintentional or, at worst, merely negligent. She relies on T.B., supra, where the mother of a four-year-old inadvertently left the child unattended at her parents' home when she went to meet a friend for dinner. Id. at 297-98. The mother and her son lived with the mother's parents, who often cared for the child. Id. at 296. The mother was familiar with her parents' routine, and believed that they were home when she left because they "were always home on Sunday nights" and their car was in the driveway. Id. at 298, 310. While acknowledging that this was a "close case," the T.B. court held that the mother's conduct did not amount to gross negligence. Id. at 309. The court reached its holding in part because it was "not a situation in which [the mother] left her four-year-old son at home alone knowing there was no adult supervision." Ibid.

Conversely, in N.J. Div. of Youth and Family Servs. v. A.R., 419 N.J. Super. 538 (App. Div. 2011), a father placed his infant son "on a twin bed without rails" next to a radiator and "closed the door behind him." Id. at 540, 545-46. The child was treated for third-degree burns, described as being "all the way down to his skull." Id. at 541. The court concluded that the father failed to exercise a minimum degree of care, reasoning that "an ordinary reasonable person would understand the perilous situation in which the child was placed, and for that reason, [the father]'s conduct amounted to gross negligence." Id. at 546 (internal quotation marks omitted).

We do not find M.H.'s reliance on T.B. persuasive. She contends that her act of leaving A.H. on a bed with no rails at most established only negligence, as opposed to grossly negligent or reckless misconduct. In certain circumstances, depending on the age of the child, the time period, and the parent's proximity to the bed, that may well be true. Such, however, is not the case here, as the trial court correctly found. Unlike the defendant in T.B., who inadvertently left her child home alone without adult supervision, M.H. deliberately left A.H., a nine-month old child, alone in a locked room, asleep in a bed. The judge found that, at her age, A.H. was capable of rolling over, and consequently being harmed. Judge Bernstein found the testimony of the Division witnesses credible, and discredited the testimony of M.H. Wright's testimony established that M.H. purposely initiated the physical altercation with the other resident, and that she continued her assaultive behavior despite Wright's admonition to cease. The judge found that although the fight stopped twice, and M.H. had the opportunity to return to her room and check on the child, she did not do so, instead opting to re-engage in the hostility.

By her own admission, M.H. left the child unattended for as long as an hour. The altercation, in her own words, left her lying on the floor, "badly beaten." When the police arrived, she asked to be taken to the hospital, and was clearly in no condition to properly care for her child, as a result of her own purposeful misconduct. Moreover, defendant's actions caused her expulsion from the shelter, leaving herself and A.H. homeless.

Nor was this an isolated event. In his decision, the judge cited defendant's long history of aggressive behavior and mental health issues. He concluded "that the Division had made reasonable efforts over a nine or ten-month period to try to avoid removal of the child[] - to no avail."

Under the totality of these circumstances, when "an ordinary reasonable person would understand that [the] situation poses dangerous risks and acts without regard for the potentially serious consequences," that person "act[s] with reckless disregard for the safety of others." G.S., supra, 157 N.J. at 179. Consequently, we affirm the trial court's finding of neglect.

B.

We briefly address the evidential issue raised by defendant, which we find to be without merit and not requiring extended discussion. R. 2:11-3(e)(1)(E).

"We grant substantial deference to the trial judge's discretion on evidentiary rulings." N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 172 (App. Div. 2012) (citations omitted). However, that discretion must conform to applicable legal standards. SeeGotlib v. Gotlib, 399 N.J.Super.295, 309 (App. Div. 2008). Evidence in an abuse or neglect fact-finding hearing must be "competent, material and relevant[.]" N.J.S.A.9:6-8.46(b); see alsoN.J. Div. of Youth & Family Servs. v. G.M., 198 N.J.382, 398 (2009). 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" is admissible in an abuse or neglect hearing "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). The "regular course of business" standard in N.J.S.A. 9:6-8.46(a)(3) should be interpreted to mirror the standard in the hearsay rule, N.J.R.E. 803(c)(6). M.C., III, supra, 201 N.J. at 346.

Rule 5:12-4(d) also permits the Division to submit in evidence "reports by staff personnel," but it must do so "pursuant to N.J.R.E. 803(c)(6) and 801(d)," which refer to the business record exception. Nonetheless, reports admitted pursuant to Rule 5:12-4(d) or N.J.S.A. 9:6-8.46(a)(3) are still subject to other hearsay limitations, including those imposed by N.J.R.E. 805 concerning embedded hearsay statements2, and N.J.R.E. 808, concerning expert opinion included in a hearsay statement admissible under an exception. See, e.g., In re Guardianship of Cope, 106 N.J. Super. 336, 343 (App. Div. 1969) (holding "the [Division] should be permitt[]ed 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).

Applying these principles, we discern no error in the court's admission of the various reports and documents. Here, Judge Bernstein was clear that the Division reports would be considered for two non-hearsay purposes: (1) as "background information" relevant to M.H.'s history with the Division; and (2) as evidence of prior services offered by the Division to M.H. Specifically, Judge Bernstein admitted exhibits P-1 to P-14 into evidence as "background information" relevant to M.H.'s history with the Division. In fact, the judge advised M.H.'s counsel, "To the extent you had some objections with regard to hearsay statements, I will not consider hearsay statements of parties that did not testify that are not involved in the case [.]" We further reject M.H.'s argument that her history of "aggressive behavior" was improperly deduced through consideration of embedded hearsay statements, as there is ample competent testimonial evidence in the record to support Judge Bernstein's conclusion.

Affirmed.

1 Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

2 N.J.R.E. 805 states: A statement within the scope of an exception to Rule 802 shall not be inadmissible on the ground that it includes a statement made by another declarant which is offered to prove the truth of its contents if the included statement itself meets the requirements of an exception to Rule 802.