DOCKET NO.
A-5780-14T3
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
In re J.M.
Decided Jan 5, 2017
DOCKET NO. A-5780-14T3
01-05-2017
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY, Plaintiff-
Respondent, v. K.M., Defendant-Appellant. IN
THE MATTER OF J.M., a minor.
Joseph E. Krakora, Public Defender, attorney for
appellant (Meghan K. Gulczynski, Designated
Counsel, on the briefs). Christopher S. Porrino,
Attorney General, attorney for respondent (Andrea
M. Silkowitz, Assistant Attorney General, of
counsel; Marlene Botros, Deputy Attorney
General, on the brief). Joseph E. Krakora, Public
Defender, Law Guardian, attorney for minor
(Charles Ouslander, Designated Counsel, on the
brief).
PER CURIAM
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NOT FOR PUBLICATION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. Before Judges Sabatino and
Currier. On appeal from the Superior Court of
New Jersey, Chancery Division, Family Part,
Hudson County, Docket No. FN-09-576-14.
Joseph E. Krakora, Public Defender, attorney for
appellant (Meghan K. Gulczynski, Designated
Counsel, on the briefs). Christopher S. Porrino,
Attorney General, attorney for respondent (Andrea
M. Silkowitz, Assistant Attorney General, of
counsel; Marlene Botros, Deputy Attorney
2 General, on the brief). *2 Joseph E. Krakora,
Public Defender, Law Guardian, attorney for
minor (Charles Ouslander, Designated Counsel, on
the brief). PER CURIAM
Defendant K.M. appeals from a November 21,
2014 order finding that she abused or neglected
her child, contending that the Family Part judge
relied on inadmissible evidence and erroneously
evaluated the facts. Because we find that the judge
did not require the proper foundation to be laid for
the admission of hearsay statements and alleged
business records, portions of which were indeed
relied upon by the court in its decision, we reverse
the fact-finding order.
After defendant gave birth to J.M. (Jake)1
prematurely in May 2014, he was unable to
breathe on his own and he was placed in the
Neonatal Intensive Care Unit of the hospital.
Shortly after Jake's birth, defendant tested positive
for cocaine and marijuana, and Jake tested positive
for cocaine. Defendant admitted to a hospital
social worker her drug use throughout the
pregnancy. The social worker referred the case to
plaintiff, the Division of Child Protection and
Permanency (Division), and a Division
caseworker met with defendant who
3 acknowledged that she had used marijuana *3
throughout her pregnancy as well as a small
amount of cocaine a few days before giving birth.
1 A fictitious name is used for the child to
protect his privacy.
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 In re J.M. DOCKET NO. A-5780-14T3 (N.J. Super. Jan. 5, 2017)
The Division executed an emergency Dodd
removal of Jake in accordance with N.J.S.A. 9:6-
8.29.2 Following the presentation of an order to
show cause, the judge upheld the Dodd removal
and ordered that Jake remain under the Division's
care, custody, and supervision.
2 A Dodd removal refers to the emergency
removal of a child from the home without a
court order, pursuant to the Dodd Act,
which, as amended, is found at N.J.S.A.
9:6-8.21 to -8.82.
Prior to the fact-finding hearing, defendant's
counsel presented written objections to the court
regarding any hearsay evidence contained within
the Division's investigation and screening
summaries, child protective services reports, and
5 of other caseworkers. *5
the hospital records. Defendant also objected to
the admission of any medical condition or
treatment contained in the proffered records as the
Division had not provided any certified medical
evidence to establish a connection between any
medical condition of the child and defendant's
conduct. Finally, defendant advised the court of
her objection to the admission of any records or
evidence contained in them without the proper
foundation for admission.
At the fact-finding hearing on November 20,
2014, defendant's counsel renewed his objections.
4 Prior to testimony, the judge *4 reviewed the
proposed Division exhibits and ruled that any third
party statements would not be admissible. She
also found that medical conditions and treatment
discussed in the Division's screening summaries
was hearsay and not admissible. The judge stated:
"[O]nly statements that the mother made, or . . .
anything the caseworker observed would be
admissible. Statements made by the hospital staff
that are in the investigative summary, unless they
testify, they're not admissible." As to the proffered
medical records, the judge ruled they were
admissible if the Division provided the proper
certification.3 See N.J.S.A. 9:6-8.46(a)(3).
3 The certification was never obtained and
the judge noted in her written fact-finding
decision that the Division's failure to
provide the proper certification rendered
the medical records inadmissible.
The Division caseworker who testified at the
hearing was not assigned to this matter at the time
of the original referral nor had she visited the child
while he was in the hospital. The caseworker had
not been assigned to Jake until June 2014 and only
remained the caseworker on the file until
September 2014 when she was replaced. The
testifying caseworker had no conversations with
defendant or any medical professionals nor had
she ever observed Jake. Her testimony consisted
of reading the records that contained observations
When defendant's counsel objected to the
caseworker reading the records, the judge stated: "
[I]t's a business record, it's admissible in the trial.
And if she's the keeper of the records she . . . can
testify as to what is in the report that the mother
said." Counsel told the judge that the Division had
not laid a foundation and the judge replied: "She
said she's the keeper of the record, I'm [going to]
allow it. I'm overruling the objection."
In our review of the record we must conclude that
the judge was mistaken. There is no reference in
the transcript of the fact-finding hearing of the
Division worker being asked if she was the keeper
of the records or of the Division laying the proper
foundation for the admission of the caseworker's
testimony. Without any foundational questions
being asked, the caseworker was permitted to read
from all of the Division records despite having no
personal knowledge of any of the events.
In her written decision of November 21, 2014, the
judge found that defendant had abused or
neglected Jake pursuant to N.J.S.A. 9:6-8.21(c)(4)
(b). She supported her decision with the Division
records and the caseworker's trial testimony.
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On appeal, defendant argues that the trial judge matters within their personal knowledge would
erred in her reliance on the Division's hearsay cause an intolerable disruption in the operation of
reports, and the hearsay statements embedded in the Division." Ibid.
6 those reports to reach her conclusion. *6 Although
Rule 5:12-4(d)4 permits the Division to submit
we are mindful of the deferential standard we
hearsay evidence that conforms with the business
accord our review of the fact-findings of a trial
records exception set forth in N.J.R.E. 803(c)(6).
court, we are equally cognizant of the serious and
That exception provides that "[a] statement
far-reaching implications to a parent of a judicial
contained in a writing . . . made at or near the time
finding of abuse and neglect under the statute. It is
of observation by a person with actual knowledge
because of those implications that we are
or from information supplied by such a person" is
constrained to reverse the decision of the trial
admissible "if the writing . . . was made in the
court, as the Division and the judge relied solely
regular course of business." N.J.R.E. 803 (c)(6).
on the out-of-court statements made by others in
the Division records and reports without a proper 4 "The New Jersey Division of Child
evidentiary foundation. Protection and Permanency shall be
permitted to submit into evidence, pursuant
The testifying Division caseworker had no to N.J.R.E. 803(c)(6) and 801(d), reports
personal knowledge of these events; she simply by staff personnel or professional
read the contents of the Division records at the consultants. Conclusions drawn from the
hearing. It is undisputed that those records - facts stated therein shall be treated as prima
specifically screening summaries, an investigation facie evidence, subject to rebuttal." [R.
summary and a contact sheet - are hearsay as they 5:12-4(d).]. --------
are out-of-court statements offered for their truth;
N.J.S.A. 9:6-8.46(a)(3) permits a writing made as
therefore, they are only admissible into evidence
a record of an event relating to a child in an abuse
pursuant to a hearsay exception. N.J.R.E. 801(c);
8 and neglect hearing *8 to be admissible in
802. Although the judge deemed the records to be
evidence "if the judge finds that it was made in the
business records, and presumably therefore
regular course of the business of any hospital or
admissible under N.J.R.E. 803(c)(6), there was no
any public or private institution or agency, and
testimonial foundation laid for the judge to draw
that it was in the regular course of such business
that conclusion.
to make it" at the time of the event or within a
We have addressed the balance needed to be reasonable time thereafter. N.J.S.A. 9:6-8.46(a)(3).
achieved between the interests of parents and the
The Supreme Court addressed the admissibility of
Division in these circumstances. As we have
Division reports in N.J. Div. of Youth & Family
previously stated: "[I]t is of great importance that
Servs. v. M.C. III, 201 N.J. 328, 347 (2010).
7 *7 the evidence upon which judgment is based be
There, the Court held that reports (1) prepared
as reliable as the circumstances permit and that the
within the regular course of business, (2) prepared
answering parent be given the fullest possible
shortly after the events being described, and (3)
opportunity to test the reliability of the petitioner's
based on reliable sources and methods of
essential evidence by cross-examination." In re
preparation should be admitted into evidence. Ibid.
Guardianship of Cope, 106 N.J. Super. 336, 343
(quoting State v. Matulewicz, 101 N.J. 27, 29
(App. Div. 1969). However, a rule requiring all
(1985)).
Division personnel "having contact with a
particular case to give live testimony on all the We further discussed the admissibility of Division
records in N.J. Div. of Child Prot. & Permanency
v. N.T., 445 N.J. Super. 478 (App. Div. 2016) and

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 In re J.M. DOCKET NO. A-5780-14T3 (N.J. Super. Jan. 5, 2017)
determined that a court may consider statements
of Division staff made to the author of the report
only if the statements were made "based on the
speaker's first-hand factual observations, at a time
reasonably contemporaneous to the facts they
relate, and in the usual course of their duties with
the Division." Id. at 487.
And very recently, we addressed the propriety of a
judicial decision finding abuse and neglect solely
9 upon the consideration *9 of Division records and
a police report, without benefit of testimonial
witnesses at a fact-finding hearing. In New Jersey
Div. of Child Prot. & Permanency v. S.G., ___
N.J. Super. ___ (App. Div. 2016) (slip op. at 15),
we noted that in relying on documents without
witness testimony, the trial court was unable to
fulfill its proper and required role of a factfinder.
We reminded trial courts of the "dangers inherent
in relying on [Division] reports as the sole basis
for deciding abuse and neglect cases" and
reiterated that "fact-finding hearings must still
adhere to fundamental rules of evidence and must
be conducted with the formality and decorum we
expect from any other adjudicative proceeding."
Id. at ___ (slip op. at 12-13), (quoting N.J. Div. of
11
Child Prot. & Permanency v. J.D., ___ N.J. Super.
___, ___ (App. Div. 2016) (slip op. at 22-23)).
In following our recent case law and the noted
rules, depending on the circumstances then, it may
not be improper for a Division caseworker to
testify to the contents of reports prepared by other
Division employees. However, the judge must act
as the gatekeeper in requiring the proper
testimonial foundation to be laid for the evidence
before it may be admitted. Here, the caseworker
was not asked and she did not testify about any of
the required foundational elements of N.J.R.E.
10 803(c)(6), N.J.S.A. *10 9:6-8.46(a)(3), Rule 5:12-
4(d) or as set forth in Cope, M.C. and N.T. The
records were not properly authenticated.
Since abuse and neglect proceedings implicate
fundamental parental rights, it is imperative that
the judge base her fact-finding decision on reliable
trustworthy information. Here, all of the evidence
presented was contained in the Division reports.
The judge cannot reasonably rely on those reports
without requiring and considering testimony as to
their authenticity.
Defendant also presents the argument on appeal
that the judge erred in allowing hearsay statements
within the Division and medical records to be
admitted into evidence. In her decision, the judge
properly rejected the medical records, as the
Division failed to provide the necessary
certification as a predicate for their admission. She
did, however, allow testimony to be presented
regarding defendant's own statements contained in
the Division records. See N.J.R.E. 803(b)(1); see
also N.J.R.E. 803(c)(25). We are satisfied the
judge did not abuse her discretion in her discrete
rulings concerning statements made by defendant.
However, that does not end the analysis on appeal.
"The scope of our review in a non-jury case is to
decide whether the findings made could
reasonably have been reached on substantial
credible evidence present in the record when
considering the proofs as a whole, giving due
regard to the *11 opportunity of the trial judge to
determine credibility." N.T., supra, 445 N.J. Super.
at 505 (quoting N.J. Div. of Youth & Family
Servs. v. A.G., 344 N.J. Super. 418, 442-43 (App.
Div. 2001) (citing Rova Farms Resort, Inc. v.
Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)),
certif. denied, 171 N.J. 44 (2002)).
Here, the Division sought to prove abuse and
neglect of a child based upon the presentation of
inadmissible hearsay. The trial court relied heavily
on the unauthenticated, and therefore
inadmissible. Division records, and the
inadmissible hearsay embedded in them in making
its determination. As a result, we cannot conclude
that the finding of abuse and neglect was
supported by adequate, substantial and credible
evidence in the record.
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 In re J.M. DOCKET NO. A-5780-14T3 (N.J. Super. Jan. 5, 2017)

Reversed. The Division is directed to remove that the foregoing is a true copy of the original on
defendant's name from the Child Abuse Registry file in my office.
within ten days of this opinion. I hereby certify
CLERK OF THE APPELLATE DIVISION