DIVISION OF CHILD PROTECTION AND PERMANENCY v. N.B.

Annotate this Case

(NOTE: The status of this decision is Published.)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4562-15T1

NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
December 19, 2017
v.
APPELLATE DIVISION
N.B.,

Defendant-Appellant.
_______________________________

IN THE MATTER OF D.B.,

Minor.
_______________________________

Argued November 6, 2017 – Decided December 19, 2017

Before Judges Sabatino, Ostrer1 and Whipple.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket No. FN-12-0185-15.

David A. Gies, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; David A. Gies, on
the briefs).

1
Judge Ostrer did not participate in oral argument. He joins
the opinion with counsel's consent. R. 2:13-2(b).
Tasha M. Bradt, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Tasha M. Bradt, on the
brief).

Olivia Belfatto Crisp, Assistant Deputy
Public Defender, argued the cause for minor
(Joseph E. Krakora, Public Defender, Law
Guardian, attorney; Olivia Belfatto Crisp,
on the brief).

The opinion of the court was delivered by

WHIPPLE, J.A.D.

Defendant N.B. (mother) appeals from a May 16, 2016 order

terminating litigation after a fact-finding hearing wherein a

Family Part judge determined she had abused or neglected her

son, D.B.

At the fact-finding hearing, the trial judge impermissibly

admitted and relied on insufficiently corroborated statements of

the child, as well as facts and complex diagnoses within a

hearsay report of a psychologist consultant of the Division of

Child Protection and Permanency (Division). For these reasons,

we reverse.

We glean the following facts from the record. On January

10, 2015, the Woodbridge Township Police Department contacted

the Division to investigate a complaint by the biological father

of then twelve-year-old D.B. who had been living with mother. A

2 A-4562-15T1
Woodbridge Township Police officer reported D.B. called an aunt

because he was frightened after mother left him alone during the

day in their hotel residence.

The officer reported the child's aunt picked him up from

the hotel and took him back to her home. The father picked up

D.B. from the aunt's home and took the child to police

headquarters. D.B. reportedly told the officer that mother and

her boyfriend had a verbal argument, and during this argument,

mother said "she was going to harm herself one of these days."

The Division workers responded to the Woodbridge police

headquarters and met with the officer, who reported what the

child had told him earlier about mother's suicidal statement.

Two other officers went to mother's hotel to conduct what

is termed a "welfare check." According to the police, mother

reported she did have an argument with her boyfriend, went to

take a drive for a couple of hours, and left D.B. at the hotel

because he did not want to go for a drive. The officers

reported mother was in a good mood and stated "when she said she

was going to hurt herself it was just a figure of speech in the

heat of the moment."

Two Division Special Response Unit (SPRU) workers met with

D.B., who reportedly told them mother, her boyfriend, and he

were all in a car heading home from dinner the night before,

3 A-4562-15T1
mother and her boyfriend argued, and mother told her boyfriend,

"[s]ince we're all here why don't you drive off the bridge and

kill us all." According to the Division's investigation

summary, D.B. said mother and her boyfriend previously had

physical fights, but it was not physical that particular day.

D.B. reported he had attempted in the past to intervene during

fights but was never hurt when trying to protect mother. D.B.

also told the SPRU workers he called his aunt because he did not

feel safe and expressed fear that mother was "going to go off on

[him] when she gets [him] alone."

Later that evening, the SPRU workers interviewed mother who

reportedly stated that she had an argument with her boyfriend

but denied saying she wanted to drive off a cliff, or that she

ever made any comments about wishing to hurt herself. According

to the Division's investigation summary, mother also denied ever

having any physical altercations with her boyfriend, stating

they just argued verbally.

The next day, the Division removed D.B. from mother's

custody pursuant to
N.J.S.A. 9:6-8.29 and
N.J.S.A. 9:6-8.30, and

on January 14, 2015, the Division filed a verified complaint

seeking the care and supervision of the child pursuant to

N.J.S.A. 9:6-8.21 to -8.73 and
N.J.S.A. 30:4C-12. The court

then placed D.B. with his father, where he remains.

4 A-4562-15T1
On January 12, 2015, the Division assigned an intake worker

who spoke with mother. According to the intake worker's written

report, mother told the intake worker she was not fearful of her

boyfriend and if domestic violence did occur she would call 911.

That same day, the intake worker spoke to the boyfriend, who

said he would "do anything he [could] to ensure that [mother]

gets [the child] back with her" and was "willing to comply with

the Batterers Intervention Program and undergo a psychological

evaluation if needed." The intake worker prepared her portion

of the investigation summary based on information she received

from the SPRU workers but did not interview the child, nor

question mother, her boyfriend, or the father about the January

10, 2015 incident.

D.B. was evaluated at the direction of the Division by

Melissa Rivera Marano, Psy.D., a licensed psychologist, who

prepared a written report evaluation of the child on March 4,

2015. This report was presented to the court with Dr. Marano's

certification, dated May 17, 2015, which stated: (1) she is a

licensed, practicing psychologist in New Jersey; (2) the report

was made in the regular course of business; and (3) the report

5 A-4562-15T1
was made within a reasonable time after "the condition and/or

occurrence."2

The report noted D.B.'s "appropriate hygiene and dress[,]"

as well as the fact that his "[m]ood and affect were within

normal range." The report also contained the D.B.'s statements

about his exposure to domestic violence.

According to Dr. Marano's report, D.B. stated he felt

nervous at times and witnessed physical fights between mother

and her boyfriend. D.B. also reported that on one occasion he

hurt his hand while trying to intervene. The child reported

that, in January, mother and her boyfriend had a long, verbal

fight, and shortly after this fight ended, mother yelled at D.B.

and he heard her call her boyfriend and say "You make me want to

curl up and die." A few days afterward, D.B. heard mother say

"she wanted to go off a cliff."

Notably, D.B. reported having friends, denied bullying or

being bullied, stated he feels happy and no longer nervous while

living with his dad, and denied having problems with eating or

sleeping. He also "denied [having] current problems with mood."

2
Dr. Marano reviewed the following in preparation of her
report: (1) a January 29, 2015 letter to the judge; (2) a
student assignment report; (3) the Division's verified complaint
for care and supervision; (4) intake forms; (5) special approval
requests; and (6) the December 5, 2014 and January 10, 2015
investigation summaries.

6 A-4562-15T1
Dr. Marano's report concluded that D.B. "produced a

significantly elevated score on the Posttraumatic Stress

Symptoms scale[,]" and "[b]ased on [the] history provided, [the]

record and additional information obtained from [the

boyfriend's] psychological assessment, it is clear that [D.B.]

experienced a high degree of stress in his family life when

living with his mother within the last two years plus." Dr.

Marano found the level of domestic violence and mother's

inability to deal with this and financial stress in a healthy

manner negatively impacted her parenting. Dr. Marano diagnosed

D.B. as having post-traumatic stress disorder (PTSD) and

recommended, as a first step, he only engage in phone contact

with mother.

On October 20, 2015, the trial court conducted a fact-

finding hearing to determine if mother's conduct constituted

abuse and neglect pursuant to
N.J.S.A. 9:6-8.21(c)(4). The

Division called the intake worker, who testified she was

assigned to follow-up the January 10, 2015 investigation. The

intake worker began testifying on direct examination, but was

unable to complete her testimony due to an illness and was never

cross-examined. Therefore, the Family Part judge ruled, over

mother's objection, he would discount the intake worker's

testimony.

7 A-4562-15T1
The Family Part judge then permitted the intake worker's

supervisor to testify with respect to the intake worker's

involvement, again over mother's objection. The supervisor had

no direct involvement and did not conduct interviews. Moreover,

the supervisor did not discuss the referral with either of the

SPRU workers. The supervisor did not discuss the situation with

any of the police officers involved, nor was she the supervisor

when Dr. Marano performed the psychological evaluation on D.B.

The Division moved three documents into evidence: (1) the

Division's investigation summary; (2) a written report from Dr.

Marano; and (3) Woodbridge Police Department's records with

respect to two incidents that involved mother, only one of which

related to the January 10, 2015 incident.

Mother objected to the use of D.B.'s hearsay statements to

the officers and the SPRU workers. The judge found the

statements were corroborated by mother's admission that she and

her boyfriend fought verbally, and D.B.'s statements to the

psychologist were substantive proof of abuse or neglect.

Mother also objected to Dr. Marano's written report because

she did not testify and mother had no opportunity to challenge

the report. The judge overruled the objection and admitted the

report into evidence, relying upon Rule 5:12-4(d).

8 A-4562-15T1
The judge suggested mother's suicidal verbalizations alone

were insufficient to find abuse and neglect. However, the judge

found mother's conduct grossly negligent or reckless when

considering the aggregation of the suicidal verbalizations made

in D.B.'s presence, D.B.'s statements about exposure to domestic

violence, and D.B. having been left alone after the January 10,

2015 incident. Moreover, the judge credited Dr. Marano's

opinion that D.B. suffered from PTSD after exposure to domestic

violence and found D.B. emotionally harmed by mother's conduct.

On January 20, 2016, the Family Part judge determined

mother abused and neglected D.B. under
N.J.S.A. 9:6-8.21(c)(4).

On May 16, 2016, the litigation was terminated. This appeal

followed.

II.

On appeal, mother argues the Family Part judge's findings

are not supported by competent admissible evidence and the judge

erred in relying upon Dr. Marano's conclusions. We agree.

To the extent the appellate issues concern a trial court's

findings of fact or credibility determinations, we accord

substantial deference and defer to the factual findings of the

Family Part if they are sustained by "adequate, substantial, and

credible evidence" in the record. N.J. Div. of Youth & Family

Servs. v. R.G.,
217 N.J. 527, 552 (2014) (citation omitted).

9 A-4562-15T1
As a general rule with respect to the exclusion or

admission of evidence, we afford "[c]onsiderable latitude . . .

[to a] trial court in determining whether to admit evidence, and

that determination will be reversed only if it constitutes an

abuse of discretion." N.J. Div. of Child Prot. & Permanency v.

N.T.,
445 N.J. Super. 478, 492 (App. Div. 2016) (quoting State

v. Kuropchak,
221 N.J. 368, 385 (2015)).

We owe no special deference to the trial court's rulings

here because they essentially involved the application of legal

principles and did not turn upon contested issues of witness

credibility. See Manalapan Realty, LP v. Twp. Comm. of

Manalapan,
140 N.J. 366, 378 (1995).

N.J.S.A. 9:6-8.46(a)(4) provides "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." Corroborative evidence "need only

provide support for the out-of-court statements." N.J. Div. of

Youth & Family Servs. v. L.A.,
357 N.J. Super. 155, 166 (App.

Div. 2003) (quoting N.J. Div. Youth & Family Servs. v. Z.P.R.,

351 N.J. Super. 427, 436 (App. Div. 2002)).

We have said the "most effective types of corroborative

evidence may be eyewitness testimony, a confession, an admission

10 A-4562-15T1
or medical or scientific evidence." Ibid. Although not

involving corroboration by admissions, in Z.P.R., we held

evidence of a child's age-inappropriate sexual behavior may

provide necessary corroboration of that child's statements with

respect to improper sexual conduct directed at the child by a

parent. Z.P.R.,
351 N.J. Super. at 436. In contrast, in L.A.,

we found acknowledgement of a debt by a non-party "is too

indirect to provide the necessary support to admit [a child's]

out-of-court statement." L.A.,
357 N.J. Super. at 167.

Some direct or circumstantial evidence beyond the child's

statement itself is required. Here, the trial judge relied on

mother's statements as evidence corroborating the child's

statements. Mother conceded she had verbal disputes with her

boyfriend in front of D.B. in the past, and admitted on the day

of the incident she said "she was going to hurt herself[,]" but

"it was just a figure of speech in the heat of the moment."

Although an admission may constitute effective corroborative

evidence, mother's statements herein did not sufficiently

corroborate the child's statements about exposure to physical

violence, because in fact, she denied the arguments constituted

physical violence.

Moreover, the child's behavior did not sufficiently

corroborate emotional harm. Dr. Marano's report observed D.B.

11 A-4562-15T1
denied thoughts of self-harm; his mood was normal and

appropriate; he was cooperative during his evaluation; he was

able to easily establish a rapport with the psychologist; and he

denied problems with appetite, sleep, or mood.

Yet, Dr. Marano's report noted D.B. "admits to having

memories of events occurring when he lived with his [m]om that

upset him[,]" and "stated that he tries not to think about

[those] things." Further, according to Dr. Marano's report,

D.B. was repeatedly "feeling nervous" around mother.

The trial judge posited the child's hearsay statements to

Dr. Marano were admissible on their own, as examples of

statements made by a declarant seeking treatment. See N.J.R.E.

803(c)(4). However, courts must protect against conflating a

statement's reliability with corroboration.
N.J.S.A. 9:6-

8.46(a)(4) constitutes a statutorily created exception to the

hearsay rule but independent evidence of corroboration is

required in order to find abuse or neglect.

Even if the statements made to Dr. Marano are considered

reliable as statements made for the purpose of treatment, 3

3
The exception under N.J.R.E. 803(c)(4) does not apply where
the purpose of the examination is to gather evidence. See State
in the Interest of C.A.,
201 N.J. Super. 28, 33 (App. Div.
1985). Thus, as D.B. was referred to Dr. Marano for a court-
ordered psychological evaluation by the Division during the
(continued)

12 A-4562-15T1
consistency alone does not constitute corroboration.4 Our courts

have rejected the concept that mental health professionals may

opine about the trustworthiness of a child's hearsay statements.

State of New Jersey v. J.Q.,
130 N.J. 554, 582-83 (1992).

Moreover, even if mother's statements corroborate some

exposure of D.B. to domestic violence, we have said exposure

alone cannot serve as a basis for a finding of abuse and

neglect. See N.J. Div. of Youth & Family Servs. v. S.S.,
372 N.J. Super. 13, 26 (App. Div. 2004) (noting it cannot be assumed

that a child is presently harmed when he or she witness domestic

violence or that such exposure will have a potential negative

effect on the child in the future sufficient to warrant a

finding of abuse).

Here, the trial court distinguished S.S., finding there was

sufficient evidence to support the assertion that exposure to

physical domestic violence harmed D.B. However, that evidence

was inadmissible hearsay: (1) D.B.'s own statements that he

observed such violence, which as explained above; and (2) Dr.

(continued)
pendency of the Title 9 action, the judge's determination that
the statements were admissible under this rule was improper.
4
By contrast, in assessing the trustworthiness of a child's
hearsay statement under N.J.R.E. 803(c)(27) – as distinct from
corroboration of the statement – a court may consider, among
other factors, "consistency of repetition." State v. D.G.,
157 N.J. 112, 125 (1999).

13 A-4562-15T1
Marano's finding that D.B. suffered from PTSD as a result of

such exposure5, were not sufficiently corroborated.

The court relied upon Dr. Marano's conclusion that D.B.

suffered from PTSD as a result of exposure to domestic violence.

Such reliance is at odds with our rules of evidence and the case

law governing the admission of complex opinions of non-

testifying experts.

Reports are admissible when they are prepared by a

professional consultant of the Division, such as Dr. Marano, for

the purpose of guiding the Division in determining the

appropriate course of action, and when they are maintained in

the regular course of the Division's business. See R. 5:12-

4(d); see also N.J.R.E. 803(c)(6); N.J. Div. of Youth & Family

Servs. v. M.C. III,
201 N.J. 328, 346-47 (2010); N.J. Div. of

Youth & Family Servs. v. M.G.,
427 N.J. Super. 154, 173-74 (App.

Div. 2012); N.J. Div. of Youth & Family Servs. v. B.M.,
413 N.J.

Super. 118, 129-33 (App. Div. 2010); In re Guardianship of Cope,

106 N.J. Super. 336, 343-44 (App. Div. 1969).

5
Furthermore, Dr. Marano's report is inconclusive as to whether
she relied on D.B.'s witnessing of physical violence or his
observation of his mother's suicidal threats to reach her
diagnosis of PTSD. Under the diagnostic criteria for PTSD, the
affected person must be exposed to a traumatic "event . . . that
involved actual or threatened death or serious injury."
American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 424-29 (4th ed. 1994).

14 A-4562-15T1
However, when an expert is not produced as a witness, Rule

808 requires exclusion of the expert's opinion, "even if [the

opinion] is contained in a business record, unless the trial

judge makes specific findings regarding trustworthiness." M.G.,

427 N.J. Super. at 174 (citation omitted).

The trustworthiness determination includes assessing

whether the opinion is "too complex for admission." N.T.,
445 N.J. Super. at 502. Here, specifically with respect to Dr.

Marano's evaluation, the trial judge stated:

Dr. Marano is known as a consultant of the
Division. We have a certification by her
. . . that these records regarding the child
were made in the regular course of business.
That they were done [within] a reasonable
time . . . if there's a consultant being
used and that consultant does provide the
certification the [c]ourt can consider it.

The trial judge further stated "[o]ften times the [c]ourt is

faced with . . . a complex diagnosis that's made there and the

Division isn't really necessarily offering a complex diagnosis.

They're offering [the report] for observations that the

consultants made." The trial court noted that "when there is a

complex diagnosis the argument can be made that the witness

should be here to be cross-examined." However, the trial court

then opined that "I don't believe that's really what this is

being offered for. It's being offered for what she did, who she

15 A-4562-15T1
saw, [who] she talked . . . to, maybe what she recommended."

The trial court relied on Dr. Marano's report and stated

[a]s to the complex diagnosis, a quick look
of it doesn't look like it's complex but I
haven't – I don't know exactly what's being
offered. It sounds like what's being
offered is really just the statements that
may have been made by [the child], which
again could come in under the fact that the
consultants record would be available to the
court. Could come in under . . . statements
made for treatment purposes[.]

More specifically, we found in N.T.,
445 N.J. Super. at
502, that "psychological evaluations generally 'entail[] the

exercise of subjective judgment rather than a straightforward,

simple diagnosis based upon objective criteria or one upon which

reasonable professionals could not differ.'" Ibid. (quoting

M.G.,
427 N.J. Super. at 174); see In re Commitment of G.G.N.,

372 N.J. Super. 42, 56 (App. Div. 2004) (excluding an evaluation

of mental state because it is among most "complex diagnoses");

Liptak v. Rite Aid, Inc.,
289 N.J. Super. 199, 221-22 (App. Div.

1996) (excluding a complex diagnosis concerning psychological

impact).

We said "subjective judgment and complexity were evident in

[the doctor's] diagnosis that [the child] had PTSD, and her

opinion that [the child's] symptoms and his problems with

[Attention Deficit Hyperactivity Disorder] and [Oppositional

Defiant Disorder] could have resulted from exposure to traumatic

16 A-4562-15T1
experiences like domestic violence." N.T.,
445 N.J. Super. at
501. Therefore, in N.T., we ruled that opinions and diagnoses,

such as a diagnosis of PTSD and its connection to the child's

exposure to domestic violence, were inadmissible hearsay under

N.J.R.E. 808. Id. at 500.

While the factual observations within Dr. Marano's

evaluation were not inadmissible hearsay and the certification

showed the evaluation "was admissible as a business record under

[N.J.R.E.] 803(c)(6)," N.J.R.E. 803(c)(6) provides a caveat that

opinions or diagnoses contained within business records are

subject to the admissibility limitations of N.J.R.E. 808. As

previously stated, when an expert does not testify as a witness,

the rule requires exclusion of that person's expert opinion,

"unless the trial judge makes specific findings regarding

trustworthiness." N.T.,
445 N.J. Super. at 501 (quoting M.G.,

427 N.J. Super. at 174).

Here, the trial court did not make the requisite findings

with respect to Dr. Marano's report. The trial court only

observed the diagnosis did not look complex and it seemed that

the report was really being offered for the child's statements

contained in the report. Despite whatever permissible purpose

for which the psychological evaluation may have been offered,

17 A-4562-15T1
the trial judge impermissibly relied on the hearsay diagnosis of

PTSD to support finding abuse and neglect.

PTSD is a complex diagnosis given the disorder's

definitions, which notably include a wide variety of symptoms,

and is not a monolithic disease with a uniform structure that

does not permit individual variation. See American Psychiatric

Association, Diagnostic and Statistical Manual of Mental

Disorders 424-29 (4th ed. 1994). A diagnosis of PTSD

encompasses an array of symptoms, stressors, and details of

onset and can occur in a variety of settings. Brunell v.

Wildwood Crest Police Dep't,
176 N.J. 225, 246 (2003).

Finally, we note the fact-finding hearing was conducted

almost entirely on the papers. The only Division witness who

provided live testimony was the supervisor who lacked personal,

first-hand knowledge of the incident and conducted none of the

interviews that were the basis of the Division's reports. 6 In

New Jersey Division of Child Protection and Permanency v. S.W.,

448 N.J. Super. 180 (App. Div. 2017), we cautioned that even

when a defendant knowingly "agrees to a determination on the

papers, the judge is not required to accede to the parties'

6
As noted above, the judge did not consider the incomplete
testimony of the intake worker.

18 A-4562-15T1
intention to proceed in that fashion." Id. at 193. Here, we

again caution against such a practice.

In sum, the trial court's determination was not

sufficiently supported by competent, admissible evidence.

Consequently, the order of January 20, 2016, finding mother

abused or neglected D.B. is vacated, and the Division is

directed to remove defendant's name from the Child Abuse

Registry as to this incident within thirty days.

Reversed and remanded for further proceedings consistent

with this opinion. We do not retain jurisdiction.

19 A-4562-15T1

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