A New Jersey appeals court has ruled in a case of first impression that child-welfare authorities may not rely solely on uncorroborated hearsay testimony from children where a person's parental rights are at stake.
In a published opinion released Monday, the three-judge panel said in Division of Child Protection and Permanency v. J.E.C. that Title 30, which sets rules for the termination of parental rights, does not permit uncorroborated hearsay statements from children.
Appellate Division Judge Jack Sabatino, writing for the panel, said the case—in which a parent lost his parental rights over two minor girls—must be granted a new hearing to determine whether there is substantial proof that he committed acts of sexual abuse.
Appellate Division Judges Heidi Currier and Richard Geiger joined in the ruling.
At one point, the girls alleged that they were raped by J.E.C., and the DCPP launched an investigation, according to the decision.
A trial judge ultimately terminated J.E.C.'s parental rights after relying heavily on the girls' uncorroborated hearsay testimony, even though Jenny had partially recanted her allegations, the appeals court said.
The trial judge, according to Sabatino, based his decision on rules established under Title 9, which involve allegations of child abuse and neglect. That statute specifically allows for the use of uncorroborated use of child hearsay testimony.
Sabatino said that, over the years, judges, including the judge in this case, mistakenly held that the hearsay exception outlined in Title 9 could be used in Title 30 cases.
"We conclude that the plain language of the provisions of this [Title 9] statutory provision confines the use of this special pathway for the admission of hearsay by children does not extend to Title 30 guardianship trials involving the termination of parental rights," Sabatino said.
He said the Title 9 exception had been "mistakenly applied at times" and "without the benefit of rigorous legal analysis."
Since the Legislature has not specifically permitted the use of child hearsay testimony in Title 30 cases, J.E.C.'s due process rights were impermissibly violated, Sabatino said.
"Consequently, the unproven allegations of sexual abuse must be disregarded," he said.
"We are also mindful that the Legislature retains the ability to extend the hearsay exception … to future termination proceedings, if it chooses to do so in the wake of this opinion," Sabatino said.
J.E.C.'s lawyer, Oceanville solo James Gentile, declined to comment.
Leland Moore, a spokesman for the Attorney General's Office, which represented the DCPP, said only that the decision was under review.
The John Gibbons Fellowship in Public Interest and Constitutional Law participated as amicus and sided with J.E.C.
"Today's opinion places appropriate limits on the admission of unreliable hearsay where the stakes—permanently severing the bond between parent and child—are extraordinarily high," said the fellowship's director, Lawrence Lustberg, who also chairs the criminal law department at Gibbons in Newark.