Opinion
DOCKET NO. A-1932-11T2
02-26-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. J.L., Defendant-Appellant, and R.S., Defendant-Respondent. IN THE MATTER OF L.L., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent R.S. (Justin Walker, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Tara Catanese, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (David Valentin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Espinosa, and Guadagno.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FN-05-40-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent R.S. (Justin Walker, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Tara Catanese, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (David Valentin, Assistant Deputy Public Defender, on the brief). PER CURIAM
J.L. (Jane), the biological mother of L.L. (Luke), appeals from the August 8, 2011 Family Part order finding that she abused or neglected Luke. Jane also appeals from the November 9, 2011 order terminating the protective services litigation and continuing Luke in the physical custody of his father, R.S. (Randall). We affirm.
We use fictitious names to protect the privacy of the parties and for ease of reference.
I.
On November 7, 2010, the Middle Township Police Department received a report from an anonymous caller that a woman was pushing a baby in a stroller when the stroller toppled over and the child walked into the street. Officer Armondo Jones responded and identified the woman pushing the stroller as Jane and the child as Luke. Jane admitted that the stroller fell over with Luke in it, but claimed the stroller was broken and it was an accident. Officer Jones called Randall, who came and picked up Jane and Luke.
The Division of Youth and Family Services (DYFS or the Division) was notified and on November 8, 2010, two caseworkers went to Jane's home. When the workers entered, they found the home in "deplorable condition," with dog feces on the floor, a pervasive smell of urine, cigarette butts everywhere, and other safety hazards, including the bathroom wall, which was falling down and filthy. While Jane was talking to the caseworkers, the family dog urinated on the floor and Luke, who was then two, began rolling in the urine. One caseworker mentioned the incident to Jane, but she made no effort to clean up Luke or the urine.
While the workers were there, Jane called Randall, who lived nearby. When Randall arrived, he told the caseworkers that he was Luke's father, but he did not live with Jane because of "how bad [the] place gets." Randall picked Luke up and asked to speak privately with one of the caseworkers. He informed her that Jane suffers from mental health issues but does not take medication that has been prescribed for her. When questioned by the caseworker, Jane denied she had been prescribed medication. The caseworker then mentioned that earlier she had observed Jane remove a bottle of pills from the top of the refrigerator. Jane initially denied hiding the pills, but later admitted that she took Abilify for "panic attacks."
The decision was made to remove Luke due to the condition of the home and questions as to Jane's mental health. The caseworker examined Randall's home and found it to be appropriate. Luke was placed with his father temporarily, even though Randall admitted smoking marijuana eight days prior.
On November 12, 2010, the Division filed an order to show cause and a protective services complaint. Although the complaint sought custody of Luke, pursuant to N.J.S.A. 9:6-8.21 to -8.73 (Title 9), and N.J.S.A. 30:4C-12 (Title 30), the deputy attorney general (DAG) representing DYFS told the judge that the Division was seeking only care and supervision with placement of Luke with his father.
Title 9 governs acts of abuse and neglect against a child, New Jersey Division of Youth & Family Services. v. P.W.R., 205 N.J. 17, 31 (2011), while Title 30 controls guardianship proceedings in which the Division seeks to terminate parental rights. See N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 110-11 (2011). Title 30 also empowers the Division to seek temporary care and custody of a child who is part of a family in need of services. See N.J.S.A. 30:4C-12.
Both parents appeared, but only Randall was assigned counsel because Jane had not determined whether her mother was going to assist her in retaining private counsel. Jane filled out a form for appointment of counsel.
No witnesses were called in support of the Division's application, and initially, the judge made no findings, stating only, "I'm affirming the removal of [Luke] and having him placed in the custody of his father, [Randall]." When Jane protested that Luke had never been away from her overnight, the judge stated, "I find that the health, safety and welfare of your son requires at least temporarily this movement from your house to his father's . . . ." Jane was granted supervised visitation.
At the return on the order to show cause, Randall appeared with counsel, but Jane did not appear, although she was represented. The DAG reported that Jane had been referred for psychological and psychiatric evaluations. In addition, Randall's first drug screen tested positive for marijuana, cocaine, and opiates, but two subsequent screens were negative for all three substances.
A fact-finding hearing was scheduled, but on February 23, 2011, in lieu of a hearing, Randall entered into a stipulation in accordance with N.J.S.A. 30:4C-12, that the "family [was] one that [was] a family in need of services." In return for entering into this stipulation, the Division dismissed the Title 9 action against Randall.
A fact-finding hearing as to Jane began on July 18, 2011. The DAG indicated that the Division was seeking a finding of abuse or neglect against Jane pursuant to N.J.S.A. 9:6-8.21(C)(4)(b), or, in the alternative, a finding that Jane needed services to ensure the health, safety, and welfare of her child under N.J.S.A. 30:4C-12.
Caseworker Kristen Harron testified as to her observations of Jane's home on November 8, 2010. Over objection, Harron also testified as to Jane's previous mental health treatment at Cape Counseling and that Jane's mental history was a concern to the Division:
It does state in the [Cape Counseling] records that [Jane] was hospitalized two times, once in 2002 and once in 2004. When she was hospitalized in 2004, it does say involuntary. There is (sic) records in here of the medication that she was prescribed. The last one that's dated 2-23-07 was the Abilify. That's the last date on medication records I believe. There was I believe two other medications that she had been previously prescribed. There are psychiatric evaluations which do state that she was diagnosed bipolar, with bipolar disorder. There is [a] diagnosis [of] bipolar disorder with psychotic features. It does state that she was noncompliant with Cape Counseling at one point where she stopped going. They were some of the concerns raised with the records.Jane did not testify or offer any evidence at the hearing.
. . . .
It was concerning because [Jane] didn't follow through with the mental health recommendations fro[m] Cape Counseling and then with what we had, or what I had gone to her home and seen in regards to [Luke], it raised some concerns with her mental health at that point.
On August 8, 2011, the trial judge issued a written decision finding that Harron was a credible witness. The judge then concluded that "DYFS met their burden of proof by a preponderance of the evidence that [Jane] abused and neglected her child, [Luke], by failing to exercise a minimum degree of care in providing proper supervision[.]" The court noted that its determination was not based "on any suspected/actual mental health" issues that Jane faced. Rather, the court based its decision exclusively "upon the deplorable and filthy conditions" in the home. The court found the conditions of the home "could have been easily prevented with regular cleaning with soap and water, and a dust pan and broom" and "such conditions as found in [Jane's] home were easily preventable." The court found that Jane "displayed an indifference to the imminent risk of harm that such deplorable conditions posed to [Luke]" and as a result, Luke's "physical, mental or emotional condition was in imminent danger of being impaired or harmed and the condition of the interior of the home posed a substantial risk to him."
On November 9, 2011, the judge conducted a hearing on the Division's motion to terminate litigation. At the outset, the DAG indicated that she was seeking a dispositional hearing "because of concerns about [Jane's] compliance and where this case was going." Caseworker Nicole Lynch testified that Jane had submitted to psychological and psychiatric evaluations. Psychotropic medication had been recommended and Jane had been referred for intensive out-patient (IOP) counseling. Jane was prescribed medication and given samples until she could get the prescriptions filled. She was referred to social services to apply for insurance to pay for this medication, but she did not follow through. The IOP therapist indicated that, without her medication, Jane's thoughts were "disorganized" and she would not benefit from counseling.
Jane was terminated from IOP for missing too many appointments. Jane was also referred to parenting classes and attended two of the three classes. Lynch also noted that Jane's home was "still in a condition that would not be safe for a child."
Following the hearing, the trial court terminated the litigation:
What was also noteworthy today is with regard to the condition of the home, and the condition of the home was an issue that was confronted, addressed by the Division in the fact finding hearing, and during those monthly visitation occasions, Ms. Lynch indicates that the house is still not safe.In the court's order terminating the litigation, the court noted it was doing so because "[t]he child is in the custody of his father" and Jane "was not fully compliant with services." The court further ordered Luke to "remain in the legal custody of [Randall and Jane], with physical custody remaining with [Randall]. All contact/visitation by [Jane] shall be supervised by [Randall] and or the paternal grandfather . . . . There shall be no change without formal application to the court with notice to DYFS and the Law Guardian."
Jane filed a notice of appeal on December 23, 2011, and raises the following arguments for our consideration:
[JANE] WAS DEPRIVED OF DUE PROCESS AT EACH STAGE OF THE PROTECTIVE SERVICES LITIGATION.
A. [LUKE'S] REMOVAL FROM HIS MOTHER'S CARE WAS IMPROPER AS WAS THE PROCESS FOLLOWED THEREAFTER.
(1) THE REMOVAL WITHOUT COURT ORDER WAS BASELESS.B. THE TRIAL COURT ERRED IN ITS APPLICATION OF TITLE 30 AND SHOULD HAVE REQUIRED THE DIVISION TO PROCEED SOLELY UNDER TITLE 9.
(2) THE HEARING TO DETERMINE WHETHER TO AFFIRM DYFS' EMERGENT REMOVAL, WITHOUT A COURT ORDER, OF [LUKE] FROM HIS MOTHER'S CARE.
C. THE TRIAL COURT ERRED IN FINDING THAT [JANE] HAD ABUSED OR NEGLECTED HER SON.
(1) NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVS. v. F.M., 375 N.J. SUPER. 235 (APP. DIV. 2005).D. THE TRIAL COURT ERRED IN DISMISSING THIS MATTER WITHOUT A DISPOSITIONAL HEARING.
(2) N.J.S.A. 9:6-8.21(c)(4)(a)
II.
A.
Jane's first claim is that the decision to remove Luke from her custody was "baseless." Because this claim and the other due process claims addressed to the removal were not raised at the trial level, we review them for plain error. R. 2:10-2. N.J.S.A. 9:6-8.29 provides that DYFS:
may remove a child from the place where he is residing . . . without the consent of the parent . . . if the child is in such condition that his continuance in said place or residence or in the care and custody of the parent . . . presents an imminent danger to the child's life, safety or health, and there is insufficient time to apply for a court order.
Imminent danger can be established by evidence of abuse and neglect. See In re J.P. and D.P., 198 N.J. Super. 166, 173 (App. Div. 1985) (holding that an adoptive mother's statement that she had hit the child was sufficient indication of imminent danger to warrant removal). When the caseworkers visited Jane's home on November 8, 2010, they described it as a "disaster." After speaking with Randall, they learned that Jane had mental health issues that she was not addressing. When the caseworkers asked Jane about her medications, she initially was not forthcoming.
In her brief, Jane suggests that the Division had the obligation "to arrange for interim housing [for Jane and Luke] while [Jane] was afforded the opportunity to clean the home, with assistance as needed." However, Randall told the caseworker that he had hired cleaning people to come into Jane's home and clean it, but she failed to keep it clean, and it eventually returned to the state the caseworkers observed.
The deplorable condition of the home, combined with concerns as to Jane's mental stability gave the caseworkers reasonable concern that leaving Luke in Jane's custody presented an imminent danger to his health and safety. Consequently, Luke's removal was allowable under statute without a court order.
Jane next argues that the court failed to comply with the procedural requirements of Title 9, as the judge failed to take testimony and relied on the "bare assertions of Division counsel" in affirming the removal.
N.J.S.A. 9:6-8.31 provides in pertinent part:
a. In any case where the child has been removed without court order . . . the Superior Court, Chancery Division, Family Part shall hold a hearing on the next court day, whereby the safety of the child shall be of paramount concern, to determine whether the child's interests require protection pending a final order of disposition.
b. Upon such hearing, if the court finds that continued removal is necessary to avoid an ongoing risk to the child's life, safety or health, it shall affirm the removal of the child to an appropriate place or place him in the custody of a suitable person.
While the proceedings on November 12, 2010 were somewhat truncated, and many of the findings required by N.J.S.A. 9:6-8.31 were placed on the record only after prompting by the DAG, the judge found "efforts to prevent placement were not reasonable" and the removal of Luke was required "due to the poor condition of the home and concerns regarding [Jane's] mental health." The proceedings were not so defective as to constitute plain error.
B.
Jane next challenges the trial court's decision to permit the Division to simultaneously proceed under Title 9 and Title 30. She argues the court should have required the Division to proceed exclusively under Title 9 and relies on our decision in New Jersey Division of Youth & Family Services. v. N.D., 417 N.J. Super. 96 (App. Div. 2010). We find that reliance misplaced. In N.D., the Division filed a Title 9 complaint alleging abuse and neglect and removed a child from his mother's custody based on concerns as to her housing. Id. at 102. The child was placed temporarily with his paternal grandmother. Ibid. A fact-finding hearing was scheduled but, in lieu of a hearing, the mother entered a stipulation under Title 30, admitting that she needed "the continued supervision of the Division." Ibid. In entering this stipulation, the mother acknowledged that there would be no findings of abuse or neglect against her. Ibid. After the mother acquired adequate housing, the Division did not return the child to her and her attorney did not move for return pursuant to N.J.S.A. 9:6-8.32(b). Id. at 103. Rather, the court transferred custody of the child to his father based on a finding that the modification was in the child's best interests under the standards applicable in private custody disputes. Id. at 105. We reversed, holding:
[w]hen a judge has given the Division authority and responsibility for the care and supervision of a child removed from his home pursuant to Title 9 and Title 30, N.J.S.A. 9:6-8.30 and N.J.S.A. 30:4C-12, the Division may proceed under Title 30, irrespective of a finding of abuse or neglect . . . . However, when the abuse orThus, N.D. does not hold that the Division was required to proceed exclusively under Title 9 as to Randall. The Division never sought a finding of abuse and neglect as to Randall and the court's decision to accept his stipulation under Title 30 while dismissing the Title 9 proceedings as to him was permissible.
neglect proceeding is terminated without a finding that the allegations in the complaint are substantiated, the Title 9 action should be dismissed after exercise of jurisdiction under Title 30 and orders should be entered in accordance with the standards and procedures pertaining to Title 30 litigation.
[Id., at 109.]
C.
Jane next challenges the finding of abuse and neglect as unsupportable, as her home had never been found uninhabitable. She also maintains that the Division was required to establish that she had the financial means and awareness to improve her living conditions or was offered assistance to do so and failed to act.
We briefly summarize the fundamental principles that guide our analysis of these contentions. "The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Trial courts are afforded this deference because they are better positioned to weigh the evidence and evaluate the credibility of witnesses. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). "On the other hand, deference is not appropriate if the trial court's findings are 'so wide of the mark that the judge was clearly mistaken.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). However, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), certif. denied, 190 N.J. 257 (2007).
A finding of abuse and neglect must be proven by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 262 (App. Div. 2002). N.J.S.A. 9:6-8.21(c)(4) states that an "abused or neglected child" includes:
[A] child whose physical, mental, or emotional condition has been impaired or is
in imminent danger of becoming impaired as the result of the failure of his [or her] parent or guardian, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court.
Jane relies on our opinion in F.M., supra, 375 N.J. Super. 235, as authority that "a 'dirty' house cannot be said to pose a risk of harm absent the municipal housing department concluding the home is not fit for habitation." In F.M., we found the trial court's conclusions as to the condition of the home when the children were removed to be largely unsupported by the record. Id. at 260. While we noted the observations of the housing inspector in F.M. that the home was fit for habitation, we did so to contrast the judge's finding that, when the children were removed earlier that day, the home was in deplorable condition. Ibid. We reject appellant's argument that F.M. requires a finding by a municipal authority that a home is uninhabitable before risk of harm can be established.
In F.M. there was some discrepancy between the observations of the police as to the condition of the home when the children were removed and the findings of the housing inspector later that same day. Ibid. Here, caseworker Harron's graphic testimony as to the condition of the home when the child was removed was unrefuted. Moreover, Harron provided several corroborating photographs of the home that were admitted without objection.
In addition, the mother's lengthy lack of housing in F.M. had been remedied before the guardianship trial, id. at 262, while the caseworker here testified at the dispositional hearing, over one year after Luke's removal, Jane's home was still not fit for Luke. We view the facts presented in F.M. to be significantly different from those presented here, and, therefore, reject the argument that our holding in that case provides support for Jane's position.
Appellant relies on our decision in Doe v. G.D., 146 N.J. Super. 419, 430 (App. Div. 1976), aff'd, sub nom., Doe v. Downey, 74 N.J. 196 (1977), in arguing that N.J.S.A. 9:6-8.21 requires proof that Jane "had the financial means and awareness to improve her living conditions." In Doe, the mother of an infant was charged with abuse and neglect. Id. at 423. Following a fact-finding hearing, the trial judge found that the child had not been subjected to any physical injury or abuse, but determined that the child's mental and emotional health were in imminent danger of being impaired because of the child's substandard and dirty housing conditions, and the mother's failure to educate or provide intellectual stimulation. Id. at 428. On appeal we reversed, determining that substandard, dirty and inadequate sleeping conditions "may be unfortunate incidents of poverty," but "do not establish child neglect or abuse." Id. at 431.
Here, the trial court distinguished Doe, finding that Jane's home was in "deplorable condition," but that it was not due to poverty and was "easily preventable":
[Jane] was not prevented by any economic reason from removing the piles of clothing from the rooms, she was not prevented from cleaning/sanitizing the bathroom, she was not prevented from cleaning up after the puppy and she was not prevented from discarding leftover food and beverages.
The judge noted that Jane was employed, working "side jobs" and had a teaching certificate. Her home had food, running water and electricity. The judge found that Jane "simply did not care how or what [Luke] was exposed to . . ." and "displayed an indifference to the imminent risk of harm that such deplorable conditions posed for [Luke]."
The trial court's detailed findings establish that the conditions in Jane's home were not merely indications of poverty and the finding of abuse and neglect does not violate the principle of Doe.
D.
Jane next claims that the trial court erred in dismissing this matter without holding a dispositional hearing and that the oral motion to dismiss by the Division denied her due process. Before the case was heard on November 9, 2011, the DAG clearly indicated that she was seeking a dispositional hearing in order to dismiss the litigation. The DAG also indicated that she had provided prior notice to Jane's counsel that she was doing this because of concerns as to Jane's compliance. While Jane's counsel opposed dismissal and disputed the claim that Jane was non-compliant, he did not object to the hearing, stating, "I'm fine with testimony . . . ."
Caseworker Nicole Lynch testified that Jane failed to follow through or complete each service offered by the Division, including therapy, parenting skills, and a referral to Social Services for medical insurance. As a result of not obtaining insurance, Jane was without psychotropic medication that had been prescribed to address her mental health issues. Lynch testified that she offered on several occasions to take Jane to Social Services herself and Jane declined. Perhaps most troubling was Lynch's testimony that, one year after Luke's removal, Jane's house was "still in a condition that would not be safe for a child."
The dispositional hearing was held as required by N.J.S.A. 9:6-8.47, and was consistent with the procedures outlined in New Jersey Division of Youth & Family Services v. G.M., 198 N.J. 382, 399 (2009). After Luke was removed from Jane and placed with his father, the Division offered services to Jane that constituted "reasonable efforts to make it possible for the child to safely return to his home." N.J.S.A. 9:6-8.8(b)(2); G.M., supra, 198 N.J. at 398. A fact-finding hearing was held where the Division established by a preponderance of the evidence that Luke was abused or neglected. N.J.S.A. 9:6-8.44; N.J.S.A. 9:6-8.46(b); G.M., supra, 198 N.J. at 398. After the finding of abuse and neglect, the court entered an order pursuant to N.J.S.A. 9:6-8.31, continuing Luke in the custody of his father pending the dispositional hearing. N.J.S.A. 9:6-8.50(d). In addition, the Division continued to provide services to Jane "to the ends of protecting the child and rehabilitating and improving family life." N.J.S.A. 9:6-8.50(e); G.M., supra, 198 N.J. at 399.
While the Division's motion to dismiss was oral, defendant had prior notice of the Division's intent, and did not object to the hearing. The DAG indicated at the conclusion of the fact- finding on July 20, 2011, that the Division was requesting a dispositional hearing as soon as possible. Three months after the fact-finding, and one year after the removal, the dispositional hearing was held to determine the appropriate outcome of the case. N.J.S.A. 9:6-8.50; G.M., supra, 198 N.J. at 399. During the hearing, the court considered "only material and relevant evidence." N.J.S.A. 9:6-8.46(c); G.M., supra, 198 N.J. at 399. Jane's counsel cross-examined the Division's witness and had the opportunity to present evidence.
At the conclusion of the dispositional hearing, the court made findings that the Division had provided services to Jane that she did not complete or follow through with. The court found "noteworthy" that the condition of Jane's home, which was addressed by the Division at the fact-finding and during monthly visitations, still was not safe for Luke to return. The court found that Luke was safe living with his father, and there was no reason to continue the litigation. Under G.M., the court was required to hold a dispositional hearing to determine "whether the [child] may safely be released to the custody of [the parent against whom the FN case was brought] . . . or whether . . . some other disposition is appropriate." G.M., supra, 198 N.J. at 402; see also N.J.S.A. 9:6-8.51. The court's conclusion that it was not safe to return Luke to Jane was firmly supported by facts adduced at the dispositional hearing.
Appellant next argues the court considered inappropriate evidence in the form of testimony by Lynch that "consisted entirely of hearsay," was "unsupported by or conflicted with the evidence and case record," and was "of an expert nature."
Lynch testified that she spoke with Jane's therapist who told her that "[Jane's] thoughts are disorganized and that it's without her being medication compliant, it's not going to benefit her to be in the counseling." This hearsay statement was admitted without objection by counsel at trial. The testimony of the DYFS caseworker reporting the opinion of Jane's therapist was inadmissible hearsay under N.J.R.E. 802, since it falls within none of the hearsay exceptions set forth in N.J.R.E. 803. However, the court made only a passing reference to Jane's "disorganized thoughts" in its opinion. Instead, the court relied primarily on Lynch's non-hearsay testimony that Jane had failed to take advantage of services and her home was not fit for Luke to live in. The admission of the hearsay testimony was harmless error.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION