NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.C. & S.M.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6712-04T46712-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

V.

K.C.,

Defendant-Appellant,

and

S.M.,

Defendant.

_______________________________________

IN THE MATTER OF S.M. AND J.M.,

Minors.

_______________________________________

 

Submitted March 8, 2006 - Decided April 20, 2006

Before Judges Stern, Fall and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-00133-04.

Yvonne Smith Segars, Public Defender, attorney for appellant K.C. (Gillian A. Swanson, Assistant Deputy Public Defender, on the brief).

Zulima V. Farber, Attorney General of New Jersey, attorney for respondent New Jersey Division of Youth and Family Services (Michael J. Haas, Assistant Attorney General, of counsel; Laura L. Bryant, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minors S.M. and J.M. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

K.C. and S.M. are the biological parents of J. and S. Following a hearing, the trial judge entered an order on March 29, 2005 finding that K.C. and S.M. abused or neglected the children. K.C. filed a notice of appeal from the order on August 23, 2005. We grant K.C.'s motion for leave to appeal nunc pro tunc and affirm.

I.

We briefly set forth the relevant facts. J. was born on July 6, 1993 and S. was born on September 11, 1995. K.C. is the mother of the children and S.M. is their father. On December 11, 2003, the Division of Youth and Family Services (Division) received a referral from a school that S. had scratches on his nose and a swollen eye. The Division's caseworker Deborah Halko (Halko) completed a Referral Response Report, in which she noted that S. first informed the school nurse that he fell off his bed; however, he later stated that S.M. threw him off the bed because he was angry. Halko responded to the school, where she met with the vice principal and the children.

S. told Halko that his father picked him up by the back of his shirt and threw him onto the floor. When asked why his father had done this, S. said that his father was angry because the pet gerbils had gotten out of their cage. Halko wrote in her report that she observed cuts on the bridge of S.'s nose and face.

Halko also reported that S. said that he had been in his parents' room when he was hurt. S. explained that he sleeps with his parents because the window in his room is broken, the rain comes in and the carpet is filled with mold. S. also said that the ceiling in the kitchen is falling in and he had been told to be careful. S. additionally stated that his father hits his mother. S. told Halko that when this occurs, he hides under the clothes on the bed and J. locks herself in her room.

Halko also spoke with J. and in the interview asked whether J.'s father caused S.'s injuries. J. said that he had. J. stated that this was the first time her father had hurt S. J. told Halko that the family went to the deli and when they returned, they found that the gerbils had gotten loose. J. said that her father started yelling. S. ran to his parent's bedroom and S.M. ran after him, "picked him up and slammed him to the floor."

Halko asked J. about her parents. J. told Halko that they fight a lot and her father hits her mother. J. said that her father drinks blackberry brandy. J. said that her father had been drinking when he hurt S. She also stated that the conditions in the home were not good. She said that there were "a lot of" fleas in the house. J. showed the caseworker marks on her legs that appeared to be flea bites. J. said that S.'s room was "a little moldy" and she could not take a bath because the tub was too moldy.

Accompanied by a police officer, Halko went to the trailer where the family was living. The entrance was blocked by cinder blocks and wood. S.M. was inside and yelled out to them when they approached. Halko told S.M. that she would like to come in and speak with him. In her report, Halko wrote that S.M. told her that the house was a mess and it was in the process of being condemned. According to Halko, S.M. said that it was not the sort of place where children should be living and they were going to be moving. Halko asked S.M. what happened to S.'s nose and face. S.M. said that the boy fell. S.M. said that "things just got out of hand" but refused to elaborate when Halko asked him what he meant.

K.C. then arrived home. Halko asked her about what happened to S. and she said that he fell. K.C. stated that she did not have any explanation. Halko wrote in the report that K.C. looked at S.M. Halko asked to see the home and K.C. refused, stating that it was a mess. S.M. started yelling and said, "I told you it's not safe, my kids should not be living here." According to Halko, K.C. told S.M., "Shut your mouth before they take our kids. You're just making it worse."

Halko informed K.C. and S.M. that their statements were not convincing. She told them that both children had reported that S.M. injured S. Halko said that the children had to be placed in protective custody. Halko reported that K.C. and S.M. began to yell and cry. Reluctantly, they signed informed consent forms, agreeing to placement of the children with the Division. The children were removed from the home and placed in separate foster homes.

In her report, Halko stated that the physical abuse by S.M. had been substantiated and neglect by both parents established based on the conditions of the home. Halko recommended that K.C. participate in counseling, that both parents have psychological evaluations and attend parenting classes. Halko also recommended substance abuse evaluations.

The Family Part judge entered orders dated December 22, 2003 continuing the children's placement with the Division. The orders noted that S.M. physically abused S. and the children had disclosed a history of domestic violence. The orders also stated that the Division had attempted to evaluate the maternal grandfather for purposes of placement but had been unable to do so because of a past history with the Division and an extensive history of police responses to his residence. The judge ordered the Division to submit case related evaluations, reports regarding placement, a case plan and a history of Division involvement.

The family was evicted from their residence on December 18, 2003. The following day, K.C. obtained a temporary restraining order against S.M. pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, and S.M. left the State. K.C. lived with her brother until January 21, 2004. The Division returned the children to K.C.'s care on January 22, 2004 on conditions and K.C. was instructed to have no contact with S.M. The children and K.C. were residing with K.C.'s friend, who agreed to supervise K.C.'s care of the children.

Alan J. Lee (Lee), Psy.D., performed an evaluation of K.C. on February 3, 2004 and issued a report detailing his findings. In the report, Lee stated that K.C. had discussed the injuries sustained by S. on December 11, 2003. She told Lee that S.M. had pushed the child to the floor, although she was not in the room at the time. K.C. washed the boy's nose and applied ointment. K.C. told Lee that S.M. was intoxicated at the time. She denied past instances of this kind and noted that the Division also was involved because of the poor condition of the family home, including the leaky window in S.'s bedroom.

K.C. discussed her relationship with S.M. K.C. told Lee that she had no idea of his whereabouts. She complained to Lee about his alcohol abuse and "argumentativeness." She told him about the restraining order that she had obtained against S.M. In his findings regarding K.C.'s personality functioning, Lee wrote that K.C. "has apparently been rather interpersonally dependent and needy, and involved herself in an ongoing relationship with a man who was described as abusing alcohol and at times had abused the children or her." Lee stated that K.C. continued this relationship "probably and most likely out of her need to feel connected and dependent on somebody." Lee also noted that it appeared that K.C. was "marginally able to provide a stable and safe appropriate residence to the children."

Lee recommended that K.C. participate in a domestic violence victim program, so that she could "improve her self-esteem, understand her own relational style, improve her ability to express herself, and to learn about the cycles of domestic violence to help prevent the same." Lee discouraged K.C. from continuing any kind of relationship with S.M. He recommended in-home family counseling to ensure stable family functioning. Lee also wrote that K.C. would benefit from a parenting education program "to ensure a solid and appropriate foundation of parenting and childrearing skills."

On March 9, 2004, the Division filed a verified complaint against K.C. and S.M. alleging abuse and neglect. In the complaint, the Division recounted its history with the family. The Division alleged that, since Lee had completed his evaluation, it had received information that K.C. and the children had contact with S.M. In addition, K.C.'s friend had reported that the children were "out of control" and K.C. was not properly disciplining the children. The complaint stated that, on February 6, 2004, Halko met with K.C. and K.C.'s friend and K.C. admitted that she had taken the children to see S.M.

The Division further alleged that, on February 17, 2004, K.C.'s friend's home had been destroyed by fire. Consequently, K.C. and the children were staying temporarily with K.C.'s father. According to the complaint, Halko spoke with S. about the fire and he said that his slipper caught fire. The slipper had been under the bed "next to the cat feces." The caseworker informed the Prosecutor's Office that S. may have caused the fire. On February 18, 2004, the Red Cross placed K.C. and the children in a local motel.

The Division additionally alleged that Halko met the family at the motel. K.C. had signed a case plan stipulating, among other things, that she would comply with Dr. Lee's evaluation. Thereafter, the Division scheduled a fire setting evaluation for S. but K.C. refused to allow the child to be evaluated. The Division asserted:

[K.C.] minimizes the domestic disputes between herself and [S.M.] [and denies that these disputes have] had any impact on the children. [K.C.] has failed to obtain stable housing for herself and the children. She further prohibited [S.] from being involved in a fire setting evaluation to determine his possible need for services. [K.C.] has neglected to be protective of the children, allowing the children to have contact with their father despite a Case Plan and Temporary Restraining Order prohibiting same.

The Division asserted that the children required its protection, care and supervision and asked for the entry of an order granting the Division care and supervision of the children.

On March 9, 2004, the judge entered an order requiring that the defendants show cause why an order should not be entered placing the children with the Division. The judge ordered the temporary placement of the children pending further order of the court.

In March 2004, the Division learned that K.C. had left the motel and the Division was unable to locate the family. In August 2004, the Division received information that K.C. and the children were living with S.M. in Dunmore, Pennsylvania. On August 6, 2004, the Division filed an amended complaint, alleging that K.C. and S.M. had absconded from New Jersey in violation of the Division's case plan.

Alexander Iofin, M.D. conducted an evaluation of J. on August 10, 2004 and provided the Division with a report dated September 20, 2004. Iofin diagnosed J. as being a victim of neglect. He said that she was suffering from adjustment disorder with disturbance of mood and conduct; oppositional defiant disorder; anxiety disorder, not otherwise specified (NOS); and a history of tremors. Iofin found that J. will benefit from a significant amount of "supportive psychotherapy" and he anticipated a decrease in the overall behavior symptomatology "which is mostly oppositional and defiant in nature, when more consistency and permanency is introduced" into J.'s life. Iofin also recommended a neurological evaluation to identify the cause of J.'s tremors.

Iofin also evaluated S. and provided the Division with a report dated September 20, 2004. Iofin diagnosed S. as a victim of physical abuse and neglect. He found provisional post traumatic stress disorder; attention deficit hyperactivity disorder; oppositional defiant disorder; and provisional depressive disorder, NOS. Iofin wrote in his report that S. "appears to have a significant amount of problems, mostly in the realms of impulsivity and affective range." He recommended regular individual therapy and other services. Iofin prescribed Adderall and, noting the allegation that S. caused the fire in a previous residence, he stated that S. could be handled in foster care so long as he had no access to lighters or matches. Iofin suggested however that the foster parents keep at least two fire extinguishers on hand to be "used if necessary."

Iofin also performed a psychiatric evaluation of K.C. on January 11, 2005. In his report, Iofin found that K.C. "clearly was the victim of domestic violence." He stated that K.C. had a history of alcohol abuse and he recommended treatment to avoid any relapse. Iofin opined that K.C. will be a "fairly good candidate" for eventual reunification with the children at some point in the future, if she follows his recommendations for counseling and the recommendations of Lee.

Robert J. Puglia, Ph.D. performed a psychological evaluation of S.M. and provided the Division with a report dated January 24, 2005. According to the report, S.M. met with Puglia on December 16, 2004 but failed to attend any follow up sessions that had been scheduled. S.M. told Puglia that the Division forced K.C. to obtain the restraining order. He admitted that a previous girlfriend, who was the mother of his third child, also had obtained a restraining order against him. S.M. said that at one point he had been jailed for non-support of his third child.

The judge held a fact finding hearing on March 29, 2005. The Division presented testimony from Donna Martinez (Martinez), who was Halko's supervisor. Martinez testified concerning the contents of Halko's referral response report, Lee's report of his psychological evaluation of K.C. and Iofin's report of his evaluation of K.C. In addition, Martinez testified concerning Puglia's report of his evaluation of S.M. The reports were admitted into evidence.

S.M. testified. He gave his version of how S. came to be injured on December 11, 2003. S.M. said that, when the family returned home, they found that the gerbils had gotten loose and the cat ran by. The animals ran to the bedroom. J. was crying because she did not want her gerbil to be killed. According to S.M., S. was jumping up and down on the bed. He stated, "I dove on the bed and grabbed the cat and I accidentally knocked my son on the floor. That's what happened. It was an accident." S.M. said that K.C. was in the kitchen at the time "doing the dishes or whatever." He saw the scratches on the boy's nose and told K.C. He said that they "didn't make no big deal out of it. It's just a scratch, you know." He admitted on cross-examination that he told the caseworker that "things got out of control." He was asked what he meant by that statement and his reply was, "I wanted to talk to my lawyer." He was asked again, "What got out of control?" S.M. said, "I have no comment."

S.M admitted that he would not let the caseworker in the home. He claimed that he did so on the advise of a friend who is an attorney. S.M. said that there was no mold in the bathtub, which was green and black. He said, "It looked like it was mold, but it wasn't mold." S.M. admitted that water "started running" because a tree fell onto the trailer "and it made the water go down through the window." S.M. insisted that the water was not coming into the trailer. S.M. said that he was going to get the window fixed. The front door had been damaged by wind the day before the caseworker arrived. S.M. said, "I was going to fix it that day, but I had such a busy schedule." He denied that he told Halko that the home was not safe for the children. He maintained that there was no mold in the home. S.M. also said that he thought the trailer was a safe and clean environment for the children.

S.M. additionally described his relationship with K.C. He said there had never been any domestic violence. He said that he "never hit her." They had been together fourteen years and there was no record of domestic violence. S.M. asserted that K.C. had obtained the restraining order "because the person had told her it would make the case better [if she secured] a restraining order."

K.C. testified as well. She stated that she was in the kitchen when S. was hurt. She denied ever stating that there was domestic violence in the home. K.C. also said that she sought the restraining order only because a caseworker told her to do so. K.C. asserted that the reports which indicated that she admitted there was domestic violence in the home were wrong. K.C. added that she had the temporary restraining order dismissed and she had reconciled with S.M.

K.C. additionally testified that she was aware that the caseworker had not been allowed to enter the trailer. K.C. asserted that this was because S.M. had spoken with a lawyer who advised that they should not let the Division into the home. She denied arguing with S.M. at the time. She denied that she told S.M. to "shut up" and he was "just making it worse."

In her decision on the record, the judge found that S.M. and K.C. had neglected the children and that S. had been physically abused. The judge stated that S.'s reported injuries had been confirmed by J.'s statements. S.'s assertions concerning the conditions of the family home also had been confirmed by J.

The judge further found that K.C's testimony was not credible. The record showed that she had obtained a domestic violence restraining order. When doing so, K.C. stated under oath that she was fearful but in her testimony at the fact finding hearing, K.C. had denied that she was afraid of S.M. The judge concluded that K.C. lied on the witness stand.

In addition, the judge found that the children were in dire need of help. She noted that the expert's evaluations of the children indicated that S. is a victim of child abuse and neglect, with significant disorders, and J. also was experiencing emotional disabilities. The judge stated that K.C. and S.M. did not seem to be aware of the children's emotional problems. K.C. was a mother who looked away from the problems in the home. S.M. had an anger problem, which was revealed when he testified in court. Like K.C., S.M. had not given complete and candid answers to the questions. The judge found that there could be no reunification with the children until the parents had addressed their individual problems.

II.

As we stated previously, K.C. filed a notice of appeal on August 23, 2005 from the order of March 29, 2005 finding that defendants abused or neglected the children. Although the notice of appeal states that the appeal is taken from an interlocutory order, K.C. did not file a motion for leave to appeal that order within the time required by R. 2:5-6(a). K.C. has appended to her brief a notice of motion for leave to appeal nunc pro tunc.

Pursuant to N.J.S.A. 9:6-8.70, an appeal may be taken as of right from any final order entered in an action brought under Title 9. However, "an order finding that a child has been abused or neglected is an interlocutory order." N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 164 (App. Div. 2003). Thus, K.C. was required to move before this court for leave to appeal the March 29, 2005 order. She was required to make that motion "within 20 days after the date of service of" the interlocutory order. R. 2:5-6(a).

We may grant leave to appeal "nunc pro tunc from an interlocutory order, decision or action, provided that the appeal was in fact taken within the time for appeals from final judgments, decisions or actions." R. 2:4-4(b)(2). The rule addresses those situations where the appellant has erroneously regarded an interlocutory order as final and filed a notice of appeal from that order rather than a motion for leave to appeal. Pressler, Current N.J. Court Rules, comment 3 on R. 2:4-4 (2006).

K.C. did not erroneously consider the March 29, 2005 order to be final. She did not file a notice of appeal from that order within 45 days, which is the time for filing of an appeal from a final judgment or order. R. 2:4-1(a). Rather, K.C. filed a notice of appeal from the March 29 order after an order was entered on July 13, 2005, which approved the Division's permanency plan and the time frames for its implementation. But the July 13, 2005 order is not a final judgment in the case and the filing of the notice of appeal at that point did not open up for review all interlocutory orders previously entered in the case.

It is clear, therefore, that the procedural course followed by K.C. is not sanctioned by our rules. She has not established a basis for relief under R. 2:4-4(b)(2). However, because the matter has been fully briefed by the parties and the consequences of a finding of abuse and neglect are substantial, we have determined that relaxation of the rules is warranted in the interests of justice. R. 1:1-2. We therefore grant the motion for leave to appeal nunc pro tunc.

III.

We turn to the merits of the appeal and first consider K.C.'s argument that the judge erred by admitting the experts' reports without testimony from the experts. K.C. argues that the experts' reports are hearsay and the judge erred in relying upon the facts and opinions stated therein. K.C. further contends that she was entitled to challenge the evidence relied upon by the Division and its experts as a matter of due process and fundamental fairness. We disagree.

The expert reports were admissible under N.J.S.A. 9:6-8.46 and R. 5:12-4(d). N.J.S.A. 9:6-8.46a(3) provides that in a matter brought under Title 9, the judge may admit into evidence:

any writing, record or photograph, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any hospital or any other public or private institution or agency shall be admissible in evidence in proof of that condition, act, transaction, occurrence or event, if the judge finds that it was made in the regular course of the business of any hospital or any other public or private institution or agency, and that it was in the regular course of such business to make it, at the time of the condition, act, transaction, occurrence or event . . . .

[Ibid.]

In addition, R. 5:12-4(d) states that in an abuse and neglect case, the Division "shall be permitted to submit into evidence, pursuant to [N.J.R.E. 803(c)(6) and N.J.R.E. 801(d), respectively], reports by staff personnel or professional consultants." N.J.R.E. 803(c)(6) permits the admission of statements contained in a "writing or other record" if the "writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy." Ibid.

The record shows that the expert reports were obtained in the ordinary course of business by the Division from its consultants. The circumstances under which the reports were obtained provide a sufficient indication of their trustworthiness. The reports "supply a reasonably high degree of reliability as to the accuracy of the facts contained therein." In re Guardianship of Cope, 106 N.J. Super. 336, 344 (App. Div. 1969). Thus, the reports were admissible under N.J.S.A. 9:6-8.46 and R. 5:12-4(d).

Since the reports were admissible, the reports could be relied upon as proof of any "condition, act, transaction, occurrence or event" reflected therein. N.J.S.A. 9:6-8.46a(3). Furthermore, conclusions drawn from facts set forth in reports that are admitted under R. 5:12-4(d) "shall be treated as prima facie evidence, subject to rebuttal." Here the judge properly relied upon the reports for her findings that the children had been abused and neglected.

K.C. argues that the judge erred in relying upon certain hearsay embedded in the expert reports. However, the judge's findings were in large part based upon statements against interest made by K.C. that were recorded in the expert reports. Such statements are admissible under the exception to the hearsay rule in N.J.R.E. 803(c)(25).

For example, K.C. admitted to Lee that S. had been injured in the incident of December 11, 2003 and she reported that S.M. pushed the boy to the floor. K.C. also told Lee that S.M. had picked the boy up by his shirt and slammed him to the floor. K.C. additionally told Lee that the trailer in which the family was living was in poor condition and S.'s bedroom had a leaky window. K.C. further reported to Lee about S.M.'s history of alcohol abuse and informed him that, at the time of the evaluation, she had an active restraining order against him. K.C. additionally reported to Iofin that S.M. had significant problems with alcohol abuse and there was an intermittent problem with domestic violence. K.C. told Iofin that she received domestic violence treatment and education in 2004.

K.C. argues that she was entitled as a matter of due process and fundamental fairness to challenge expert's recitation of fact and the bases for their findings and conclusions. K.C. contends that the ability to cross-examine witnesses to exclude inadmissible hearsay is essential. K.C. argues that the testimonial evidence must be presented under oath and subject to cross-examination.

These contentions are without merit. As we have pointed out, the reports were admissible as prima facie evidence of abuse and neglect under N.J.S.A. 9:6-8.46 and R. 5:12-4(d). K.C. was "free to offer evidence contradicting any statements present in [the] reports" and the judge had the discretion to "call for live testimony on any point." Cope, supra, 106 N.J. Super. at 344. K.C. could have issued a subpoena to compel the experts to appear for purposes of cross-examination and apparently elected not to do so. But that does not affect the admissibility of the reports as prima facie evidence, nor does it bar use of statements contained therein by the judge as substantive evidence to support findings of abuse and neglect where, as here, the statements were contained in documents admissible under exceptions to the hearsay rule. In the circumstances, we are not convinced that due process or principles of fundamental fairness barred the introduction or consideration of this evidence.

IV.

K.C. next contends that the judge erred in relying upon certain out-of-court statements by J. and S. K.C. recognizes that under N.J.S.A. 9:6-8.46a(4), "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." K.C. says that the judge improperly relied upon the children's statements concerning the incident of December 11, 2003, the condition of the family residence, and the presence of domestic violence in the home. K.C. contends that the children's testimony was essential and could have been taken by way of private interviews in the judge's chambers. Again, we disagree.

We note that at the hearing, K.C. never requested that the judge interview the children in camera. Counsel also did not object to the admission of the children's statements through Halko's report. Because the issue was not raised in the trial court, we consider K.C.'s assertion under the plain error standard. R. 2:10-2. To warrant reversal of the judgment, the judge's admission and consideration of the children's statements must be "of such a nature as to have been clearly capable of producing an unjust result." Ibid.

We are satisfied that the children's statements were sufficiently corroborated and therefore properly admitted as "allegations of abuse or neglect." N.J.S.A. 9:6-8.46a(4). S.'s statements concerning the December 11, 2003 incident were corroborated by J.'s assertions to Halko and by K.C.'s statements to Lee about the incident. S.'s description of the conditions in the home was corroborated by J. and S.M.'s assertions to Halko about the family residence. Puglia's findings that the children were victims of neglect and S. was a victim of abuse provide further corroboration of the children's assertions. In addition, the children's statements were corroborated by the testimony given at the hearing by both S.M. and K.C. They denied that S. was physically abused. They denied that the home was unsafe and dangerously in disrepair. The judge's finding that this testimony was unworthy of belief corroborated the children's statements.

V.

Finally, K.C. argues that the judge erred in finding that K.C. abused and neglected the children. On this point, we note that the judge erroneously was of the view that she was required to find abuse or neglect by clear and convincing evidence. After a fact finding hearing, a determination that a child was abused or neglected "must be based on a preponderance of the evidence." N.J.S.A. 9:6-8.46b(1).

"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)). Indeed, in this case, deference is particularly appropriate because the findings turned in large part upon the judge's assessment of the credibility of the witnesses. Id. at 412 (citing In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). The judge who "hears the case, sees and observes the witnesses, [and] hears them testify," is in a better position than an appellate court to evaluate the veracity and credibility of the witnesses. Pascale v. Pascale, 113 N.J. 20, 33 (1988)(quoting from Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)). Furthermore, because the judges in the Family Part have special "expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.

We are convinced that there is sufficient evidence in the record to establish by a preponderance of the evidence that S. was physically abused by S.M. in the incident that occurred on December 11, 2003. Despite her later denials, K.C. was well aware that the injuries sustained by S. were the result of S.M.'s physical abuse of the boy. Although K.C. admitted that S.M. had a history of alcohol abuse and could be violent, she did nothing to protect the child from the potential for further physical abuse.

In addition, K.C.'s relationship with S.M. was marked by domestic violence. Indeed, K.C. went to court and obtained a restraining order against S.M. She later claimed that she only did so because she was told to do so by a Division caseworker. But K.C. could not have obtained the restraining order unless she testified in court under oath that she had been a victim of domestic violence. There was clear support in the evidence for the judge's findings that K.C. was a victim of domestic violence.

The evidence also established that the family home was unsafe and unclean. S.M. admitted to Halko that the trailer was not a fit place for children. The children described the unsanitary conditions in the trailer where the family was living. The window in S.'s bedroom was damaged. The front door had been broken. The ceiling in the kitchen had fallen in. S.M. and K.C. would not allow the caseworker in, suggesting that they had something to hide.

In addition, when it appeared that S. started the fire in K.C.'s friend's residence, K.C. would not let him attend a fire setting evaluation and absconded to Pennsylvania with the children, without informing the Division. In doing so, she deprived the children of an opportunity for much needed evaluations and services. The experts found that the children were victims of neglect and, in S.'s case, a victim of physical abuse.

Taken as a whole, we are convinced that the evidence fully supports the judge's findings that the children were abused or neglected as those terms are defined in N.J.S.A. 9:6-8.21c.

 
Affirmed.

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STERN, P.J.A.D. (concurring in the result).

This case involves the conflict between the constitutionally protected exercise of parental rights and the State's obligation to protect children. No case before us is more significant, and no case requires more attention to detail. Despite the thorough attention and care given to this case by my colleagues, I have a number of reservations about the determination of abuse or neglect. I am particularly concerned that only one witness testified in support of the complaint at the hearing of March 29, 2005, and that the witness, Donna Martinez, simply relayed the interviews and observations of her subordinate, Deborah Halko. Indeed, the trial judge found that the appellant's two children were abused or neglected, and placed them in the care and custody of the Division of Youth and Family Services based, to a substantial degree, on the testimony of a single witness who narrated the reports of the caseworker. Ms. Halko responded to a call from the children's school and interviewed the children as well as defendants. The witness also read portions of the expert reports into evidence.

I recognize that the Sixth Amendment to the United States Constitution, and our equivalent state constitutional right to confrontation, N.J. Const. art. I, 10, do not apply in this setting, as it is not a "criminal prosecution." However, the concept of due process requires more than the recitation of a subordinate's report in order to establish facts. This is particularly true in this case where defendant-mother, K.C., testified that she obtained the restraining order against S.M. "on [the] advice of the caseworker to make it better for [her] case," and that she was not "fearful" of S.M. or a victim of domestic violence. Moreover, K.C. and S.M. disputed the contents of Ms. Halko's reports, and while the judge concluded that K.C. lacked credibility and lied "in an effort to protect the relationship between [her] and [S.M.]," Ms. Halko did not testify, and thus her credibility could not be assessed.

Much of what was reported by Ms. Halko was confirmed in the evaluation interviews conducted by the experts. Expert reports are admissible, and the facts embodied therein may be considered for purposes of assessing the expert's diagnosis and evaluation. Hence, the facts as reported to the doctors can be considered in terms of evaluating neglect or abuse. Cf., e.g., In re Civil Commitment of J.S.W., 371 N.J. Super. 217, 225 (App. Div. 2004) (permitting reliance on hearsay within presentence reports and ADTC evaluations, contained in exhibits and an expert's testimony, in affirming a commitment under the Sexually Violent Predator Act), certif. denied, 183 N.J. 586 (2005); In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612-13 (App. Div. 2003), ("[a] psychiatrist is permitted to testify about a defendant's prior criminal history in order to offer an opinion about a defendant's mental condition"), certif. denied, 179 N.J. 312 (2004). See also N.J.S.A. 9:6-8.46(a)(3); R. 5:12-4(d).

But here, notwithstanding the admissibility of the expert reports, some of Supervisor Martinez's testimony concerning Ms. Halko's observations at defendants' home, and what was said to Ms. Halko, went somewhat beyond that which was reported to the evaluating experts and what was used for purposes of their evaluations. As a result, notwithstanding the special expertise of the Family Part, see Cesare v. Cesare, 154 N.J. 394, 413 (1998), and the particular expertise of the respected trial judge in this case, I have serious reservations about the sufficiency of the proofs to sustain the judgment, and whether the factual findings were "based on competent reliable evidence," as required by law. N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 175 (App. Div. 2005) (citing N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245 (App. Div. 2002)).

I nevertheless concur in the result which brings this matter to a close. We are told that following the entry of the order under review (and the submission of briefs to us), the case was dismissed following a number of subsequent hearings. Hopefully there has been substantial progress made in the teaching of parenting skills and that reunification of the family can be maintained.

My colleagues conclude that the March 29, 2005 order finding that K.C. and S.M. abused or neglected their children is interlocutory, and that the order of July 13, 2005 approving the Division's permanency plans is not a final judgment. We have held that the finding of abuse or neglect is interlocutory, N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 163-66 (App. Div. 2003), but I am reluctant to conclude that once the court removes a child from the home and takes custody from the parent by entry of a "permanency order" (emphasis added), there is no right of appeal. I therefore have reservations about the holding that the July 13, 2005 order was interlocutory.

There are a number of ways to protect a witness who is reluctant to testify, and a State employee should not be permitted to jeopardize its case by declining to testify.

However, this is not the appropriate vehicle to review that question, the fundamental hearsay issues or the question of appealability. The family has been reunited, and the complaint has been dismissed. I am, therefore, for present purposes, prepared to accept the holding of the majority that the March 29, 2005 order is interlocutory, and would join my colleagues in bringing finality to the matter by denying leave to appeal nunc pro tunc.

 
Assuming that the July 13, 2005 order did not constitute a final judgment, for the reasons detailed by my colleagues, the ultimate dismissal of this case suggests that we should not grant leave to appeal nunc pro tunc at this point in time. While I have strong reservations about affirming the March 29 order, I join my colleagues in bringing this matter to a close.

S.M. has not appealed from the March 29, 2005 order.

Martinez informed the court that Halko did not appear to testify because S.M. reportedly had threatened her. The judge did not permit the Division to introduce a report detailing the alleged threats. In her decision, the judge gave no weight to these allegations.

We note that the judge subsequently entered orders on August 11, 2005; August 23, 2005; August 25, 2005 and October 27, 2005 which continued the children in the Division's custody and care. By letter dated March 9, 2006, K.C.'s attorney advised that the trial court has dismissed the case.

The court was told that S.M. "made several threats against Ms. Halko" and her children, which was why she declined to testify. I am absolutely satisfied that the judge did not consider "anything that happened with Ms. Halko," as she stated in her opinion.

Dr. Lee's evaluation of K.C., Dr. Iofin's evaluation of K.C., Dr. Iofin's evaluation of J., and S., and Dr. Puglia's evaluation of S.M., were introduced as exhibits.

And once there is a right to appeal from a final judgment, interlocutory orders which resulted in the judgment are reviewable. See R. 2:2-3(a); Pressler, Current N.J. Court Rules, comment 2.3.2 on R. 2:2-3 (2006).

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April 20, 2006