In Re Guardianship of Cope, 106 NJ Super. 336 (1969) is a New Jersey case dealing with efforts of the New Jersey State Bureau of Children Services to take custody of the children of Betty Cope. The Bureau is the predecessor to the Division of Child Protection & Permanency (DCP&P). The ease with which the Bureau sought to terminate the parental rights of Betty Cope may be shocking to a modern reader, but many due process rights simply didn't exist before Cope.
Facts of Case
This case was an appeal of the order of the trial court that terminated the parental rights of Betty Cope to her two daughters. Betty Cope argued that the evidence did not support the trial court's decision. The appeals court agreed.
In 1965, Betty Cope had two children under the age of 2 and placed one child in a foundling home and used the Bureau's daycare center upon finding work. In June of 1967, she consented to (what she believed to be) temporary placement of her children with the Bureau. Three months later, Betty Cope removed her daughters, who were both under five years of age, from Bureau custody and care. After a month, the Bureau reasserted custody and sought to terminate Betty Cope's parental rights.
The trial court heard evidence concerning the condition of the home and of the progress of the children in custodial care. But nearly all this evidence was hearsay, and very little was firsthand. There was no evidence of any type of abuse or serious neglect. Instead, the Bureau argued that Betty Cope's daughters were “deprived” at home and did far better in Bureau custody. The only piece of non-hearsay evidence of abuse was the testimony of a police officer that upon his arrival at Betty Cope's home, he saw her holding the cord of an iron, and one of the children was crying. He also wrote that the apartment was “untidy.”
Most of the evidence upon which the trial court terminated Betty Cope's parental rights was hearsay—a statement made by someone not in court described by someone else. While there was a report in the case apparently prepared by caseworkers at the Bureau, the report was not provided to Ms. Cope (although her attorney asked for it), and it was not introduced into evidence. Rather, a worker from the Bureau (who did not have firsthand knowledge of the Cope case) read the report and testified as to its content. The problem with hearsay is that when a witness testifies in a written report, there is no opportunity to cross-examine the witness or to object to the scope of the report.
The hearsay issues in the Bureau report were even more complex, as the report described statements of neighbors or others, which was double or even triple hearsay. That is, it was “hearsay within hearsay” and was inherently unreliable.
Note on Triple Hearsay
Triple hearsay would be Person 1 reading the written statements of Person 2, who notes that Person 3 told her that Person 4 told her something.
Appeals Court's Concern With Lack of Evidence
The Appeals Court was scathing in its criticism of the trial court's findings and made the following statements concerning the lack of evidence and due process to Ms. Cope:
- “There was no showing in the record that (Betty Cope) was in any way incapable of caring for her children.”
- “There was no showing that the mother injured or otherwise mistreated the child.”
- “There was no finding that the children had been abused or neglected by the mother.”
- “Almost all evidence presented was hearsay.”
- “It is difficult to see how the mother here could adequately prepare a defense.”
Summary of Decision
The Cope case is about due process—that is, it provides guarantees that a proceeding is fair and that evidence at trial is as reliable as the circumstances allow. Prior to Cope, the Bureau could petition the court to terminate the rights of a parent if they alleged that the child would do better under their care and custody.
The due process rights center on four distinct protections:
- The petition or complaint must allege specific facts to support allegations of abuse or neglect.
- Evidence provided by the DCP&P must “match up” with allegations contained in the petition.
- Evidence should be as reliable as possible. Caseworker reports may come in under a hearsay exception if they are prepared by a person with firsthand knowledge. Testimony of neighbors and police officers should be live in court, with cross-examination.
- The trial judge must put forth specific findings and explain the decision.
The Petition Must Give Notice of Allegations
The Cope court found that without concrete allegations, “it is difficult to see how the mother here could adequately prepare a defense.” The court held that in a proceeding, the Bureau must make specific allegations of abuse and neglect and that these allegations must be contained in the petition. The court found that the parents must be given notice of the allegations against them and an opportunity to prepare a defense and to be fairly apprised of the grounds upon which the court has rendered its award.
Evidence at the Hearing must Support the Allegations in the Petition.
The Cope court held that “it follows from this that the proofs at trial must support the allegations of the petition 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.” Further, “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.”
To meet the standard of fairness, the DCP&P must present evidence that supports the allegations in the Petition. They can only present evidence of allegations contained in the Petition, such that the parent can prepare a defense. In this way, the parent cannot be “ambushed” at a proceeding with new evidence or allegations to which the parent had no notice.
Hearsay and Report of Caseworker
The Cope court was concerned about the way in which the Bureau presented the evidence from the ongoing interactions that it had with Betty Cope. The court recognized that it would be burdensome to require all caseworkers to be present in court for proceedings on parental rights, especially where the events had unfolded over several years. But the court also recognized that the way in which the caseworkers' report was presented in Cope was inherently unreliable and unfair.
The Cope court ended up compromising on this issue and finding that the Bureau may provide reports of caseworkers, which may be admitted under a hearsay exception, but only if the caseworker had firsthand knowledge of the case. Other reports, such as the report of a police officer or a complaint from a neighbor, cannot be admitted under this hearsay exception. This means the officer or neighbor must provide in-person testimony where the parent has the right to cross-examine the witness and highlight problems with the testimony. In this way, a case cannot be based on gossip, rumor, or innuendo but rather on factual testimony.
Holding on Admissibility of Caseworker Report
Reports by Bureau caseworkers can come into evidence under hearsay exception if they are:
- Written by a caseworker with firsthand knowledge.
- Kept at the same time as the events at issue.
- Kept by the caseworker in the usual course of their duties.
If the report of the caseworker contains a conclusion, this can be rebutted by the parent. If the parent rebuts conclusions in the report, the Bureau must provide live testimony of the caseworker.
Holding on Police Reports and Statements of Neighbors
Reports of neighbors, police, or other persons must comply with the rules of evidence—in most instances, this means that the person testifying must be present in the court and must limit testimony to facts upon which they have firsthand knowledge.
The Trial Court Must Make Specific Findings and Conclusions to Explain the Decision
The Cope court found that the trial court failed to make any finding other than that the Cope children were “deprived” and that “there was no explanation of what the court meant by deprived.” The court further found “no indication of the facts upon which this conclusion was based, and no finding that the children had been abused or neglected by their mother or that she was incapable of caring for them.”
As a result of the Cope case, a trial judge cannot simply make a finding that the allegations of abuse or neglect are true, but rather the court must make specific findings of fact on what allegations were proven based on what evidence. In this way, it is very clear why the court ruled a particular way, and it will be possible for the parent to appeal if they believe the trial court made a mistake.
Best Interests of the Child
The Cope court also made several statements regarding the Best Interests of the Child Test, used by NJ courts in determining custody and termination of parental rights. The court found that:
- Preservation and strengthening of family life is a matter of public concern in the interest of general welfare.
- Prevention of “dependency and delinquency” should be accomplished, if possible, with children being in the home.
- Parental relationships are an integral part of the “best interests” test.
- The welfare of a child is inextricably bound to the rights of the parents.
- To terminate the rights of a parent, the Bureau must prove that the best interests of the child will be “prejudiced” if they remain with the parent. This means the health or development of the child has been or will be impaired.
The Cope court questioned how the best interests of the children were served in that case. While the Bureau argued that it intended to eventually return the children to Ms. Cope, the appeals court was dubious about this because the proceeding terminated parental rights completely. Further, the Bureau provided no information on what treatment Betty Cope needed or what it could provide to put her in a position to get her kids back.
Impact of the Cope Decision
As a result of the Cope decision, people facing abuse and neglect allegations in New Jersey have several due process protections. These protections include the right to notice of the allegations and an opportunity to prepare a defense. The DCP&P is not able to make summary allegations – they must make specific allegations, and they can present proof only to allegations of which the parent had notice. Evidence heard in Title 9 and Title 30 proceedings is entitled to certain protections after Cope, and inherently unreliable evidence may not be admitted. Finally, the trial court must make specific findings and conclusions explaining the basis of its decision.
While this case description suggests that a child abuse proceeding involves one hearing and trial, there are numerous hearings typically involved. You may have heard the terms:
- Preliminary Hearing
- Fact-Finding Hearing
- Dispositional Hearing
- Review Hearing
- Permanency Hearing
It is important that you have counsel that understands your rights and that your rights are protected at each stage of a DCP&P proceeding. An experienced DCP&P attorney will be able to guide you through the hearing process and advise you of your rights and protections at each step.
If you are facing a DCP&P investigation or hearing, you need a law firm familiar with the DCP&P case law and history. The Lento Law Firm Team has represented many other families in proceedings and investigations before the DCP&P, and they will be able to help protect your relationship with your children and your reputation. Contact the Lento Law Firm online or call 888-535-3686 to schedule a consultation today.