In Re Cope
This case is here on appeal by Betty Cope from a judgment of the Essex County Juvenile and Domestic Relations Court awarding guardianship, care, custody and control of her two daughtеrs, Bettina and Darquitta, to the New Jersey State Bureau of Children‘s Services (Bureau). The order terminates all parental rights between the children and their mother and grants the Bureau full power over the person and property of the children, but “without authority to consent to adoption.” The mother contends that the competent evidence adduced at trial fails to support this award. We agree.
The Bureau proceeds here under
“(a) that the preservation and strengthening of family life is a mаtter of public concern as being in the interests of the general welfare;
(b) that the prevention and correction of dependency and delinquency among children should be accomplished so far as practicable through welfare services which will seek to continue the living of such children in their homes;
* * * * * * * *”
As we have said in the analogous context of adoption proceedings, the rights of the child‘s natural parents are essential factors for judicial consideration.
“The parental relationship is an integral part of the `best interests’ test [
Although the Bureau insists that it will return the children to their mother аs soon as she is able to care for them, and the order of the court below forbids adoption apparently with this result in mind, the award of guardianship nonetheless terminates parental rights “for all purposes” and vests full and complete control in the Bureau. Any decisiоn to return the children to their mother appears to be completely within the Bureau‘s discretion.
It is, therefore, incumbent upon the Bureau, or other petitioner for guardianship, to show more than that it will
The Bureau‘s petitions for guardianship allege that “it is in the best interests” of the Cope children that they be placed under the Bureau‘s guardianship because “a potentially dangerous situation of abuse would exist should [Bettina] be returned to Miss Cope at present” and “a potentially dangerous condition of abuse and neglect would exist should Miss Cope request premature removal of Darquitta from placement.”
The evidence revealed that in June 1967 Miss Cope consented to the placement of her twо young daughters (then ages 3 and 4) in the temporary custody of the Bureau, which housed them at the Youth Consultation Service in Newark. Although this was the only time the Bureau took custody of the children, it had previously exercised supervisory care over Darquitta after Miss Cope had placed her in a foundling home, and, in June 1965, Miss Cope had agreed to in-home supervision by the Bureau. In late 1965 Miss Cope placed the children in the Bureau‘s day care center while she worked. Miss Cope visited the children in September 1967 and apparently removed Bettina from the Bureau. Custody of the child was apparently reasserted by the Bureau after about a month. Miss Cope testified that she had intended the commitment to be temporary only and that she had intended to take the children back when she was rested.
The evidence supporting the Bureau‘s petition for guardianship fell into two general categories: testimony concerning the condition of the children after they were placed with the Bureau in June 1967, and testimony tending to show conditions in the Cope home. In both cases, almost all of the evidence adduced was hearsay testimony.
Taken together, this evidence showed nothing more than that the children were in poor physical and mental condition when the Bureau first received them; that they flourished while in the Bureau‘s care, and that they retrograded when the mother visited them and when she kept Bettina with her. There is very little in the competent evidence to establish the potentiality for abuse and neglect alleged by the Bureau in their petitions. Aside from the hearsay “reports” of mistreatment in the Coрe home, the only competent evidence in this regard was the testimony of an Englewood police officer that, in response to a call from an unidentified resident, he appeared at the Cope apartment and found Miss Cope holding an ironing cord аnd one of the children “in hysterics.” The officer found no evidence of physical abuse of the child and was unable to ascertain the cause of the child‘s crying. Miss Cope told him it was none of his business and she would discipline her children as she saw fit. The officer stated that the аpartment was “untidy.”
As for the period in September 1967 during which Miss Cope “snatched” Bettina from the Bureau, there was no showing that the mother injured or otherwise mistreated the child. Although it was testified that the purpose of the commitment was “to permit the children to have the kind of services that would benefit them and also to permit the mother to undertake some care and treatment for herself,” we are not informed as to what, if any, treatment was needed by Miss Cope. In particular, there was no showing in the record that she was in any way incapable of caring for her children.
The trial court‘s “findings” were simply that the children “were in a condition which indicated that they were deprived children.” There was no explanation of what the court
In view of the fact that almost all of the evidence presented in support of the award was hearsay, we are presented with the diffiсult question of what type of evidence is to be considered competent in a proceeding of this type. Although we are not dealing here with a criminal proceeding against the parent, the allegations of the petitions concern her conduct and it is quitе apparent that substantial rights of hers are involved. In a situation such as this it is of great importance that the evidence upon which judgment is based be as reliable as the circumstances permit and that the answering parent be given the fullest possible opportunity to test the reliability of the petitioner‘s essential evidence by cross-examination.
On the other hand, we are dealing here with a statutory scheme established to provide a means by which the Bureau or other petitioner may obtain guardianship of children in the Bureau‘s custоdy. As the Bureau and the court below both properly indicate, a rule requiring all Bureau personnel having contact with a particular case to give live testimony on all the matters within their personal knowledge would cause an intolerable disruption in the operation of the Bureau.
As a result, it becomes necessary to allow certain evidence to be produced in a hearsay form while seeking to give full protection to the rights of the parent. In reaching this balance, we conclude that in cases of this type the Bureau should be permittted to submit into evidence, pursuant to Evidence Rules 63(13) and 62(5), reports by Bureau staff personnel (or affiliated medical, psychiatric, or psychological consultants), prepared from their own first-hand knowledge of the case, at a time reasonably contemporaneous with the facts they relate, and in the usual course of their duties with the Bureau.
In the event that such reports contain conclusions drawn from the facts stated in them, the reports may still be admitted, but they should be treated as no more than prima facie evidence of the validity of the conclusions contained in them. If the parent рroduces evidence refuting such conclusions, petitioner would then have the burden of producing live testimony in order to establish their validity.
In the case of conclusionary statements, the author should be a person qualified to give an opinion on the subject under discussion (e.g., a psychiatrist or psychologist for diagnosis of mental disease or impairment), and no conclusion should be received unless the report contains a statement of the facts or procedures upon which it is based.
As to oral or written reports from neighbors, the рolice or other persons, the usual rules governing admissibility of hearsay evidence should apply.
In the present case it appears that several of the Bureau‘s witnesses testified from written reports prepared by other Bureau personnel. None of thesе reports was placed in evidence (despite a request by counsel for Miss Cope that they be offered) and we have no way of knowing from the record whether the testimony fully and accurately reflected their contents. Nor did Miss Cope or her counsel have the opportunity to examine these reports. None of the authors of these reports were called to testify, and nothing was introduced to establish the circumstances under which they were prepared. The testimony of the witnesses was “double” (sometimes “triple“) hеarsay, making verfication of its accuracy virtually impossible.
Moreover, it follows from this that the proofs at trial must support the allegations of the petitions in order for petitioner to succeed, and that the trial court should present findings of fact sufficient to enable us to determine if this has been done. The fact that the proofs support other, theretofore unspecified, grounds for award of guardianship, should not be sufficient, since the defending parent has had no opportunity to prepare a defense to the undisclosed allegations. This does not mean that the parties and the court are bound rigidly and precisely to the wording of the petitions. It does mean that the parent has a right to be fairly apprised of the grounds upon which petitioner will rely in seeking guardianship of his children and the grounds upon which the court has rendered its award.
The judgment is reversed and the cause remanded for service of adequate petitions, a full hearing on the merits thereof, and a decision by the court based on sufficient findings of fact, in conformity with this opinion. The Bureau shall retain custody of the children, with such reasonable visitation privileges as it may fix, pending the outcome of this case. Of course, nothing herein is to be taken as an expression of our opinion as to the ultimate merits of the case. That will be for the trial court to decide.