DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.C.

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.


                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4343-15T1


NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,
v.

J.C.,

        Defendant-Appellant/
        Cross-Respondent,

and

J.K.,

     Defendant.
________________________________

IN THE MATTER OF H.K.,

     Minor-Respondent/
     Cross-Appellant.
_________________________________

              Argued November 14, 2017 – Decided November 21, 2017

              Before Judges Fisher and Fasciale.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Warren County,
              Docket No. FN-21-0168-14.

              Ryan T. Clark, Designated Counsel, argued the
              cause for appellant/cross-respondent (Joseph
             E. Krakora, Public Defender, attorney; Mr.
             Clark, on the briefs).

             Amy McKinsey, Deputy Attorney General, argued
             the cause for respondent New Jersey Division
             of    Child   Protection    and    Permanency
             (Christopher S. Porrino, Attorney General,
             attorney; Andrea M. Silkowitz, Assistant
             Attorney General, of counsel; Ms. McKinsey,
             on the briefs).

             Olivia Belfatto Crisp, Assistant Deputy Public
             Defender,   argued   the  cause   for   minor-
             respondent/cross-appellant H.K. (Joseph E.
             Krakora, Public Defender, Law Guardian,
             attorney; Ms. Crisp, on the briefs).

PER CURIAM

      Defendant (the father) appeals from a February 5, 2015 order

finding that he abused and neglected H.K., born in May 2004,

because he was under the influence of heroin and allowed drug

dealing out of the home where H.K. lived.          H.K. cross-appeals from

the   same    fact-finding    order.       The   father   argues   there    is

insufficient evidence to support the judge's findings.                 H.K.,

through the law guardian, agrees, and contends that the judge

erred   by   considering     hearsay   statements    in   an   investigation

summary from a caseworker.      We agree with the law guardian because

the judge relied on embedded hearsay statements made by a sergeant

contained within the caseworker's report.          We therefore remand for

a new fact-finding hearing.




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       H.K.   lived   with    his   parents.      H.K.'s     mother   previously

admitted to abusing and neglecting him after she conceded her own

drug usage harmed H.K.        As to the father, the judge conducted the

fact-finding hearing and took testimony from the caseworker.                   The

judge     admitted     into     evidence       the    caseworker's       lengthy

investigative report, which contained numerous statements from the

sergeant.

       In the report, the caseworker reported that the sergeant kept

her informed about a search of the house.                  The caseworker wrote

in her report that the sergeant said he had obtained a search

warrant, the police had searched the house, and they had seized

drugs from the residence.           The caseworker stated in the report

that the mother told the sergeant that the father used heroin and

another person was selling drugs out of the house.                  The sergeant

and mother did not testify at the hearing.

       Rule 5:12-4(d) permits the Division of Child Protection and

Permanency (Division) to submit hearsay evidence that conforms

with    the   business   records      exception      set    forth   in   N.J.R.E.

803(c)(6).     That exception provides that "[a] statement contained

in a writing . . . made at or near the time of observation by a

person with actual knowledge or from information supplied by such

a person" is admissible "if the writing . . . was made in the

regular course of business."            N.J.R.E. 803(c)(6).           Thus, Rule

                                        3                                 A-4343-15T1
5:12-4(d) 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) are still

subject to other hearsay limitations, including those imposed by

N.J.R.E. 805 concerning embedded hearsay statements.            Pursuant to

N.J.R.E. 805, "[a] statement within the scope of an exception to

[N.J.R.E.] 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 [N.J.R.E.] 802."

      
N.J.S.A. 9:6-8.46(a)(3) permits a writing made as a record

of an event relating to a child in an abuse and neglect hearing

to be admissible in evidence "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

. . . event, or within a reasonable time thereafter."                Like Rule

5:12-4(d),    embedded   hearsay   statements    contained      in    Division

reports introduced for admission into evidence pursuant to this

statute are still subject to N.J.R.E. 805.

      Here, the sergeant's statements contained in the report are

hearsay.     The Division did not lay a proper foundation for the

                                      4                                A-4343-15T1
admissibility of his statements, which the judge considered when

conducting the hearing, rendering his oral opinion, and issuing

the order under review.     We conclude that admitting the sergeant's

statements into evidence deprived the father and law guardian of

a   fair   hearing,   and   may   have   unduly   affected   the   judge's

credibility findings and conclusions that the father abused and

neglected H.K.

      We therefore remand for a new fact-finding hearing.          We leave

the details of the hearing to the discretion of the judge. Because

the judge will be making new findings of fact and conclusions of

law after performing such a proceeding, we need not address the

sufficiency of the evidence on this record.           We do not retain

jurisdiction.




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