W.W. v. I.M.

• Decision Date: 10 March 1989
• Citation: 231 N.J.Super. 495,555 A.2d 1149
• Parties: W.W., Plaintiff-Respondent, v. I.M., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 495

231 N.J.Super. 495

555 A.2d 1149

W.W., Plaintiff-Respondent, v. I.M., Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Dec. 14, 1988.

Decided March 10, 1989.

Susan M. Scarola, for defendant-appellant (Lomurro, Davison, Eastman & Munoz, attys.; Chen Kornreich, Freehold, on the brief).

Edward S. Donini, for plaintiff-respondent (Donini and Donini, attys.; Edward S. Donini, Wall Township, on the brief).

Before Judges KING, ASHBEY and SKILLMAN.

The opinion of the court was delivered by

ASHBEY, J.A.D.

In this contested custody case the judge granted plaintiff, father W.W. (Walter) and defendant mother I.M. (Isobel) joint custody of C.M. (Charles), but appointed Walter the primary residential parent. Isobel's motion for a stay of this order was denied. Isobel appeals. ¹

Charles was born on August 15, 1980, at a time when Walter was married to Carla, ² to whom he had been married for some 20 years. Isobel ran a horse farm. Her occupation was breeding horses and giving riding lessons. She also cared for her recently bedridden mother who lived with her. From birth Charles lived with his mother and grandmother and beginning in July 1982 Walter had a court order for visitation. Ultimately the parties agreed to an order for custody in which Isobel had custody and Walter had visitation. It is a fair reading of the record that Walter had consistently participated in Charles' life from birth.

When Charles was two years old, he was bitten by Isobel's dog, one that Walter asserted he had previously asked Isobel to give away because he was a danger to the child. According to Walter, Isobel told him she would protect the child from the dog, but two weeks later Charles was again bitten. He was hospitalized requiring surgery.

This incident led to Walter's 1983 complaint to the Division of Youth and Family Services (DYFS). He complained about the dog attacks and also about the condition of Isobel's home. According to testimony and the DYFS records a worker for DYFS persuaded Isobel who reluctantly agreed to get rid of the dog.

On August 10, 1986, Walter requested another investigation by DYFS. The next day Joyce Jacobs, a DYFS social worker, investigated Walter's then allegation of child neglect. In her testimony Jacobs described the condition of Isobel's house. She said that clothing and old food was everywhere. There were piles of medical bottles, dirty pots and dishes, dried dog feces in several of the rooms, on the floors and under the furniture. There was a decomposing dead rat on the front step and starving kittens. There were wires hanging in the kitchen and bare electrical wires in the hallway. The house was overrun with flies and fleas. Jacobs concluded that the house was an unsafe place for Charles to live. She persuaded Isobel to allow Charles to stay with Walter while Isobel cleaned the place. Charles stayed with his father for a couple of weeks and then was returned to his mother. DYFS supervision continued until January of 1987.

Walter saw more of Charles. On February 19, 1987, while Walter was giving Charles a bath, he saw extensive bruising on the child's buttocks. Walter contacted DYFS, and Isobel admitted that she had spanked Charles on his bare buttocks because he had not gotten ready for school on time. At that time Isobel admitted she expected Charles to get himself ready for school each day with no help from her because she was too busy. ³

Following these incidents DYFS filed a complaint for abuse and neglect and Charles lived with Walter from February 1987 until August 1987. ⁴ In addition to the incidents described, the DYFS complaint asserted that Isobel had attempted to have Walter and Jane killed and only failed because she could not raise the fee. There followed a series of DYFS related court orders for evaluations and counseling including the CPC evaluation at issue, and finally an order which directed Walter to file a complaint for custody if he intended to do so. Following Walter's May 1987 custody complaint, a Family Part judge ordered that the DYFS proceeding remain inactive pending the completion of Walter's custody case and ordered the Monmouth County Probation Department to conduct a full custody investigation.

Upon the filing of the Probation Department's report, many days of trial testimony followed: November 17 and December 16, 1987, January 7, March 7, March 28, and June 10, 1988 when the judge issued his ruling. Among the witnesses testifying for Walter were his wives, his parents and other relatives, acquaintances of Isobel, DYFS workers, the principal of Charles' school and Charles' teacher. The principal testified to the "noticeable improvement" in Charles when he lived with Walter. He said that there was a "dramatic change in the boy's demeanor, his attendance, including the tardiness and his work habits, and his general ability to get along with others." Walter's former wife testified that Charles was dirty and hungry when he came to visit over the six year period that she saw him weekly. There was also testimony that Isobel had asked a friend to help her hire a hit-man to "do bodily harm" to Walter and Jane.

Dr. Jordan Pauker, the psychologist who had been counseling Isobel and Charles every other week since February 1987 under the DYFS order, testified that Isobel was becoming more aware of Charles's needs and was learning how to meet those needs. Dr. Pauker further testified that there was no noticeable behavioral change in Charles when he lived with his father and no reason to believe that Charles should be removed from his mother's home. Dr. Pauker gave no opinion as to Charles's best interest with respect to custody. Kathy D'Antonio, the DYFS social worker assigned to the case since July 1987, testified that since she had been involved, the housekeeping standards in Isobel's house had been acceptable.

In the middle of trial Isobel proffered the testimony of a child psychology expert who gave the opinion that it would be detrimental to Charles to remove him from her care. This proffer was prompted by the trial judge's admission of reports of the March 11, 1987 Children's Psychiatric Center (CPC) examination of Charles; the March 16, 1987 CPC testing of Isobel and the March 30, 1987 CPC testing of Walter which were court ordered in connection with the DYFS neglect and abuse complaint and which were part of the court's records. The judge also reviewed the Monmouth County Probation Department Report and the DYFS file. ⁵ On appeal she asserts that all of these rulings were error and that if admissible, the reports were improperly relied on by the judge.

There is controversy concerning the admissibility of hearsay in a custody trial, particularly hearsay which is not contained in a court ordered report. See Ponzini v. Ponzini, 135 Misc.2d 468, 515 N.Y.S.2d 974 (Fam.Ct.1987), detailing the law of sister states. See also In re Scarlett, 231 N.W.2d 8 (Iowa Sup.Ct.1975); Gumphrey v. Gumphrey, 262 Minn. 515, 115 N.W.2d 353 (1962); De Boynton v. De Boynton, 137 Cal.App.2d 106, 289 P.2d 868 (1955).

We recognize that there was such inadmissible hearsay in this trial. John Cernak of the Monmouth County Prosecutor's office's, for instance, was permitted to testify that he was told about Isobel's purported effort to harm Walter and his wife. This was certainly inadmissible hearsay and that it was error to have admitted it. ⁶ Defendant's primary complaint, however, concerns the admission of the CPC reports to which the judge referred in his opinion. ⁷

Generally, an exception to the hearsay rule is made for forensic reports in custody cases. See Annotation, "Right, in child custody proceedings, to cross-examine investigating officer whose report is used by court in its decision," 59 A.L.R.3d 1337, 1361 (1974), where it was said,

... In order to determine what is in the child's best interest, courts have often relaxed the seemingly inflexible procedural rules of traditional adversary proceeding. Thus it is said that the courts must try to give the parties litigant their fair trial in open court and at the same time try to do what is best for the child or children. [ (footnotes omitted) ]

We have a particular rule applicable to DYFS reports. R. 5:12-4(d) provides as follows:

The Division of Youth and Family Services shall be permitted to submit into evidence, pursuant to Evidence Rules 63(13) [business record exception] and 62(5) [definition of business], reports by staff personnel or professional consultants. Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal.

N.J.S.A. 9:6-8.46 also states:

In any hearing [to determine child abuse or neglect] ... any writing, record or photograph, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any hospital or any other public or private institution or agency shall be admissible in evidence in proof of that condition, act, transaction, occurrence or event, 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 condition, act, transaction, occurrence or event, or within a reasonable time thereafter, shall be prima facie evidence of the facts contained in such certification.

N.J.S.A. 9:6-8.10a also provides:

a. All records of child abuse reports made pursuant to section 3 of P.L.1971, c. 437 (C. 9:6-8.10), all information obtained by the Division of Youth and Family Services in investigating such reports including reports received pursuant to section 20 of P.L.1974, c. 119 (C. 9:6-8.40), and all reports of findings forwarded to the central registry pursuant to section 4 of P.L.1971, c. 437 (C. 9:6-8.11) shall be kept...