Corroboration: When Should A Child’s Hearsay Statement be Allowed in a DYFS Case?

In a recent unpublished decision, DYFS v. J.B. & N.D., the Appellate Division reversed a finding of neglect against parents, citing insufficient factual support for the trial Court’s conclusion.  What I find interesting about this case is not the ultimate conclusion, but the Court’s analysis of the admissibility of the children’s statements to DYFS.

In this case, a little girl told DYFS that her brothers bagged marijuana in the home where she lived.  The Appellate Division deemed these statements admissible pursuant o N.J.S.A. 9:6-8.46(a)(3), which provides that “previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect”.  The issue is not whether or not there was corroboration; rather, one must ponder how a child’s statement that illegal activity conducted by her siblings qualifies as “previous statements …” as to “any allegations of abuse or neglect”. 

After all, the child did not say that her parents knew of this activity, engaged in this activity or facilitated it.  How, then, is the child’s statement a statement alleging abuse or neglect?  It is not uncommon in DYFS cases that any statement made by a child will be admitted into evidence, so long as corroboration exists.  I submit that this is not what the statute commands. 

The rationale behind admitting children’s hearsay statements of abuse is to avoid re-traumatization of a child by forcing them to relive their abuse by re-telling the tale of abuse or neglect.  But, here, this child was not saying that she was “abused” because her brothers bagged marijuana in her home.  She made no mention of her parents knowledge of this activity whatsoever.  Rather, the Court extrapolated this child’s statements into “any allegation of abuse” to justify, ex post facto, into an abuse allegation to admit her statement without an opportunity to cross examine her.  Is that the proper result? Would this child have suffered any harm from testifying that her brothers bagged weed in their home?

Even if the child may have disliked testifying in this case, that potential harm should not lead to the Court’s expansive interpretation of N.J.S.A. 9:6-8.46 to allow a child’s hearsay statement into the record, absent a finding that the statement reflects an actual statement of abuse or neglect.  To do so starkly contradicts the plain language of the statute, as well as its legislative intent.

DYFS Defense: Termination by Default

When DYFS becomes involved with a family, the clock starts ticking from the time a child is removed from a parent and placed into DYFS custody.  Parents, oftentimes battling life-long mental health and substance abuse issues, are expected to fix themselves within as little as 15 months or else the State of New Jersey will move to terminate parental rights.  Though the Adoption and Safe Families Act contains strict guidelines for achieving permanency for children caught up in the system, child welfare advocates recognize that parents likely will encounter bumps in the road… Family Courts? Not so much.

In a recent unpublished decision, DYFS v. T.R.R., a trial Court proceeded to terminate parental rights by default against a parent who failed to timely complete a psychological evaluation.  The reason for the parent’s delay?  A medical condition.  The parent supplied her medical records to document the illness, albeit belatedly, in support of her motion to vacate default.  Citing calendar concerns, the Court denied the motion, proceeded to trial and entered a judgment terminating parental rights. The Appellate Division rightfully reversed, relying upon long-established case law viewing with liberality applications to vacate default.  That was not a tough call here.

But, this case highlights a common inequity in DYFS cases.  In T.R.R., the parent was late to participate in a psychological evaluation due to her medical condition.  To the Court, this delay was inexcusable.  Yet, in the same case, DYFS was unable to meet its deadline for a bonding evaluation between the child and the foster parents because the child fell asleep during the evaluation and rescheduling occurred after the deadline.  The Division’s delay was of no moment.  Repeated bites at the apple abound for DYFS.  Parents?  One missed appointment can mean a TPR without their participation.  Do we ever see such rigid enforcement of deadlines inure to the detriment of DYFS?  Should we?