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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

K.S.

Defendant-Appellant.

IN THE MATTER OF Q.J., a minor.

January 2, 2014

 

Submitted November 18, 2013 - Decided

 

Before Judges Parrillo and Harris.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-238-10.

 

Joseph E. Krakora, Public Defender, attorney for appellant (John P. Monaghan, Designated Counsel, on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mary Zec, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor Q.J. (Charles M. Ouslander, Designated Counsel, on the brief).

PER CURIAM

Defendant K.S. appeals from a June 22, 2012 order of the Family Part finding that he neglected his minor son, Q.J. We affirm.

K.S. is the father and C.J. is the mother of Q.J., born on November 16, 2008. At the time, K.S. was in a relationship with C.J., which began earlier in 2008, when he was nineteen years of age. The relationship endured until February 2010.

The Division of Youth and Family Services (Division) first became involved with this family on September 22, 2009, when it received a referral from a family member indicating that K.S. was beating C.J. in the presence of Q.J. C.J. and K.S. denied any physical altercation, and the Division concluded that the allegations of neglect were unfounded.

Then, on December 2, 2009, the Division received an Information and Referral Report from a group home where K.S. was residing at the time. Screaming and yelling was heard coming from K.S.'s room, and when staff entered the room, they found C.J. being held back by K.S. Q.J. was on the bed crying. Staff had to physically remove K.S. off of C.J.

The Division's next involvement was on February 20, 2010, when the Bogota Police Department called in a referral reporting that there had been an argument at the home of Q.J.'s maternal grandmother over whether Q.J. could leave with K.S. Additionally, threatening and offensive voicemail messages were left on the grandmother's cell phone, including one that stated: "I question whether or not [Q.J.] is mine, he can just suck my dick, [Q.J.] is a dirty little bastard and if I see him I will pull my dick out and piss on him."

As a result, the Division initiated an investigation that included interviews of the grandmother, C.J. and K.S. The grandmother stated that she does not trust K.S. and does not want him around Q.J., adding that K.S. will call and yell at her when C.J. does not answer her phone, leaves threatening voicemails and text messages, and has physically abused C.J.

At her initial Division interview, C.J. stated that she no longer wanted to remain in a relationship with K.S., who has "problems" and says "stupid stuff" to her and her mother out of anger, but does not mean. She at first denied that K.S. had ever abused or neglected Q.J.

Later, on March 16, 2010, when she met with a Division representative and two domestic violence liaisons, C.J. admitted that K.S. has physically abused her by choking, shoving and kicking her, the most recent abuse occurring five months earlier. C.J. pointed to a scar on her face that was caused by K.S. and added that in the winter months, K.S. made her walk outside in the rain with no shoes on. C.J. also disclosed text and voice messages in which K.S. called her "ugly and fat" and "dumb and stupid." When she heard, supposedly for the first time, a message that K.S. left on her mother's voicemail to the effect,

Dumb bitches, that's why I am going to get someone to fuck [Q.J.] in the butt, so he can feel violated and I am going to piss on [Q.J.] when I see him . . . he's a test tube baby . . . he's a waste of sperm . . . set [Q.J.] on fire . . . no court will stop me[,]

 

C.J. stated that she did not want K.S. visiting Q.J. anymore.

C.J. further admitted that K.S. had abused her in the presence of Q.J. and that Q.J. does not like K.S. According to C.J., after a past visit, Q.J. returned home with a bloody nose, which K.S. attributed to him trying to get mucous out of the child's nose. C.J. also stated that in February 2010, K.S. hit Q.J. hard on his buttocks because Q.J. was tired from walking, though there were no marks or bruises on Q.J.

Based on its investigation, the Division substantiated that K.S. posed a substantial risk of harm to his son Q.J. The Division implemented a safety protection plan which restrained K.S. from having any contact with Q.J. K.S. stated that he was happy with this arrangement and signed the plan, and also asked how he could go about terminating his parental rights.2

On March 25, 2010, the Division filed a complaint for care and supervision of Q.J., who was then sixteen months old. That same date, a Family Part judge granted the Division's application, placing Q.J. in the care and supervision of the Division, ordering all contact between Q.J. and K.S. to be supervised by the Division, and directing K.S. to submit to a substance abuse evaluation.

A three-day fact-finding hearing ensued during which a Division caseworker, Q.J.'s maternal grandmother, and C.J. testified. Because the Division's investigation included a review of K.S.'s history as a minor with the agency, the Division attempted to have its caseworker testify as to this history gleaned from the agency's database and her conversations with prior caseworkers. K.S.'s counsel objected, however, because documentary evidence of K.S.'s history had not been provided in discovery. The Deputy Attorney General (DAG) then explained that K.S.'s prior Division record had yet to be retrieved from the Division's archives. When the DAG subsequently requested the opportunity to amend the discovery and rely on documents in that record, which were due to arrive at the Division's office any day, the judge denied the relief and ruled the Division could not rely on that record.

In any event, when trial resumed, Q.J.'s maternal grandmother testified that Q.J. and C.J. resided with her. She observed K.S. behave in ways that made her concerned for Q.J. For instance, on one occasion when Q.J., then between three and six months old, was crying, K.S. told him "don't be a punk." She further testified that at some time in late 2009, K.S. was in her living room asking C.J. for money and when she refused, he became upset as he was leaving, picked up the baby's carriage that was outside the house and threw it down, breaking it. After that incident, the witness no longer allowed K.S. into her home.

The grandmother went on to testify that K.S. phoned her in January 2010 and called her a "bitch," "whore," "fat bitch," and told her "suck my dick." She hung up and stopped answering her cell phone when he would call. K.S. then started leaving her voice and text messages in which he would threaten to burn down the house and have someone kill her. Moreover, K.S. would threaten Q.J. in most of the messages, saying he was going to have Q.J. "suck his dick, have somebody put a dick in his ass" and that he was going to "cut [Q.J.'s] head off and send it to [her] in the mail." She estimated that in the months of January and February, she received five or six voice messages and three text messages a day from K.S., though on cross-examination she alternatively said it was every other day. She went to the police on January 3, 2010 and then in July to file a complaint after K.S. started leaving similar messages on her phone again, stating that she "need[ed] to do something to protect [Q.J.]"

C.J. also testified. She said that in the winter of 2008,

K.S. started getting physically aggressive with her, estimating that he choked her more than three times and punched her more than five times. Q.J. was present for one such incident in January 2010. She and Q.J. were visiting K.S. at the group home where he resided. At one point, she went to the bathroom and when she came back, K.S. was looking through her phone while Q.J. was on the bed. When she tried to get it back, K.S. got mad and punched her in the face and she fell to the floor. A staff member at the group home came in and restrained K.S. as he tried to get at C.J., who was holding Q.J. at the time.

At the conclusion of C.J.'s testimony, the Division rested. Neither the Law Guardian nor K.S. presented any evidence. The Family Part judge, in a written decision, dismissed the Division's complaint, finding insufficient proof to substantiate the allegation that K.S. abused or neglected Q.J.

Subsequently, the Division filed a motion for reconsideration after finally receiving K.S.'s record as a minor from the agency's archives in Trenton. The Division requested that the court consider this new evidence showing that K.S. had a history of psychiatric instability and physically and sexually aggressive behavior that was apparently going untreated, and that, combined with his threats against his young son, amounted to substantial risk of harm to Q.J.

Following argument, the judge reinstated the Division's complaint and ordered K.S. to undergo a psychological evaluation within forty-five days and that the evaluating psychologist have access to the Division's newly produced records.3 When the hearing resumed on May 14, 2012, Dr. Robert Miller, a psychologist, testified for the Division.4

According to Dr. Miller, Division records revealed that K.S. had a "propensity to violence" including "trying to suffocate another child" and "threatening people with a knife." There was "evidence of suicidal ideation, with homicidal ideation described as hyperactive, impulsive, aggressive." Dr. Miller described K.S.'s childhood as "quite chaotic" and noted several diagnoses all "overlapping with impulsive or intrusive type symptoms," the most relevant of which was a diagnosis of intermittent explosive disorder after an incident where K.S. tried to jump out of a window. Dr. Miller described intermittent explosive disorder as "aggressive impulses and inability to bind those impulses" resulting in "assaultive acts." Later, K.S. was recommended for residential treatment for aggressive behavioral issues before aging out of the treatment setting, and did not again appear in Division records until the September 22, 2009 referral.

Dr. Miller also pointed to evidence that K.S.'s pattern of behavior through his adolescence continues and has led to "disturbing outcomes." He noted that K.S. has questioned whether he is the father of Q.J., which shows that he "may not have a full emotional commitment to the child, which reduces the barrier to aggression or violence towards the boy." Moreover, the repeated phone calls and messages were indicative of intermittent explosive disorder. Dr. Miller opined that K.S.'s use of graphic and threatening language about Q.J. demonstrated his lack of empathy for Q.J. and "a willingness to use the body of this little boy as a way of terrorizing these two women." K.S.'s use of Q.J. as a means of terrorizing others showed that he did not recognize Q.J. "as a person in [his] own right" with his "own right to safety." According to Dr. Miller, the specific scenarios and "particularly heinous images" described by K.S. in the way he talked about Q.J. went beyond normal angry reactions and were designed with the intent to terrorize and control, and in the context of K.S.'s documented history of violent and aggressive behavior, posed a real risk to Q.J.

[K.S.] uses violence instrumentally to control others, to terrorize them to get what he believes he needs.

 

This is what makes it particularly dangerous. The act of using aggression instrumentally and in a personal relationship we know reduce[s] barriers to using them in the future, using them in times when he feels put down or dissed or disrespected in some way. . . [I] think that it's coming from deeply held feelings of shame from early childhood.

 

[C.J.] said I don't want to be with you any more, this could be enough to trigger an abandonment response which is probably highly disturbing to this young man. And rather than feel that feeling of abandonment or shame, many people turn that into rage and aggression in an attempt to get back or to [] harm the source of their rage. And I think we see that.

 

Dr. Miller further testified that he did not believe the record of K.S.'s past treatment demonstrated that his significant risk to Q.J. may have been mitigated in any way. Nor did K.S.'s lack of contact with C.J. over the past several months suggest a lessening of the threat: "This kind of problem doesn't change without some significant intervention. You don't grow out of it. It doesn't go away because of the time." Dr. Miller opined that K.S. should not have any contact with Q.J. until he submitted to a full psychological evaluation. He noted that although K.S.'s previous treatment notes indicate that he exercised some control during treatment, they all recommended that he continue to receive psychological and psychiatric treatment.

At the close of Dr. Miller's testimony, the Division rested its case and no other witnesses testified. Following submission of written closing arguments, the judge issued a written decision, dated June 22, 2012, finding that based on his review of the documents submitted into evidence subsequent to the motion for reconsideration, and the report and testimony of Dr. Miller, the Division met its burden of establishing neglect. The threats K.S. made against Q.J., and K.S.'s documented history of impulsivity and inability to control his anger, created a substantial risk of harm to Q.J.5

On appeal, K.S. raises the following issues:

I. THE TRIAL COURT ERRED IN FINDING THAT ABUSE AND NEGLECT OF Q.J. HAD OCCURRED.

 

II. THE TRIAL COURT ERRED IN FINDING THAT K.S. FAILED TO EXERCISE A MINIMUM DEGREE OF CARE TOWARD Q.J.

 

III. THE COURT ERRED BY TWICE TRYING DEFENDANT, K.S.[,] AND IN DOING SO VIOLATED THE PRINCIPLE OF RES JUDICATA.

 

IV. THE COURT ERRED BY ADMITTING INADMISSIBLE HEARSAY EVIDENCE AT THE TIME OF TRIAL.

 

V. [K.S.]'S DUE PROCESS RIGHT TO CONFRONT WITNESSES WAS DENIED.

 

We find no merit to these contentions.

I.

K.S. contends that the court erred in finding that he abused and neglected his minor son. We disagree.

On review, "we must afford great deference to the Family Part's findings of fact and conclusions of law based on those findings." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009); see also N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005). Accordingly, we must "uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).

Under Title Nine, protecting children from threats to their health and safety is "of paramount concern." N.J.S.A. 9:6-8.8 (b); see also N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 247, 253 (App. Div. 2012) ("Title Nine, of course, is aimed at the protection of children from serious harm, whether emotional or physical, as well as the threat of harm."); State v. Demarest, 252 N.J. Super. 323, 330 (App. Div. 1991) ("[T]he focus of proceedings under Title 9 is . . . the protection of children from acts or conditions which threaten their welfare.").

An "abused or neglected child" is defined, in relevant part, as

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 parent or guardian, as herein defined, to exercise a minimum degree of care . . . 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.

 

[N.J.S.A. 9:6-8.21(c) (emphasis added).]

 

The Division has the burden of proving abuse or neglect under Title Nine by a preponderance of the evidence at a fact-finding hearing. N.J.S.A. 9:6-8.44; N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009). Such evidence must be "competent, material and relevant." N.J.S.A. 9:6-8.46(b); G.M., supra, 198 N.J. at 398.

Here, in finding that K.S. abused and neglected Q.J., the Family Part judge stated:

Dr. Miller testified, and included in his report that [K.S.] had been observed since childhood to demonstrate violent behavior, suicidal ideation, runaway behavior, stealing, oppositional/defiant behavior, vandalism, and instrumental aggression towards others, which thus raised serious concern. Further, [K.S.] had received numerous psychological evaluations that document propensity toward aggression, impulsivity, and as a result of his behavior he has required psychiatric hospitalization and residential treatment. Descriptions of [K.S.'s] behavior and the content of the threats made toward his son, [Q.J.], are graphic and raise serious concern. Police have been called to the home where [Q.J.] and the biological mother reside because of escalating aggression. [K.S.] is heard on audio tape indicating intentions towards harming his son, as was previously set forth on the record, and Dr. Miller concludes that these threats should be taken seriously given his apparent anger towards [C.J.] and his documented history of poor impulse control.

 

. . . .

 

I find that the language used by [K.S.] in making his threats to [Q.J.] must be closely examined and taken seriously based upon Dr. Miller's testimony. While the contents of the messages were intended to terrorize mother and maternal grandmother, [K.S.'s] impulsivity raises serious concern as to the safety of [Q.J.] should he be in the presence of [K.S.], and may out of anger, act on them. It is impossible for him to control his anger based upon the documented history, and his acting out in such a violent and aggressive way, that the Division has met its burden and has proven substantial risk of harm to the child.

 

Dr. Miller's findings, which were uncontradicted, established that Q.J. was put at substantial risk of harm in the presence of K.S. because of K.S.'s untreated impulsivity and documented history of aggression and violence, combined with his willingness to use Q.J. as a means of terrorizing C.J. and her mother without regard to the child's welfare.

K.S. nevertheless argues that he never actually injured Q.J., and that Q.J. suffered no emotional or psychological harm from witnessing any domestic violence between his parents or from K.S.'s graphic and threatening messages to others. Yet, it was the substantial risk of future harm that K.S. posed to his minor son that motivated the Division's complaint and underlay the court's decision.

In this regard, the Division need not prove that K.S. inflicted actual injury, or allowed harm to be inflicted, on Q.J. in order to sustain a finding of abuse and neglect. Rather, when evidence of actual impairment to the child is absent, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013). "A court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" Ibid. (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)). Indeed, Title Nine protects children from merely the substantial risk of harm. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012).

For example, in A.L., supra, the Court considered whether evidence of a mother's prenatal drug use was sufficient to uphold a finding of abuse and neglect where the child had suffered no actual harm. 213 N.J. at 26-28. The Court reversed the finding only because the evidence did not reveal the severity or extent of the mother's substance abuse or how recently she had used drugs, facts relevant to the degree of future harm facing the child, and not because the child had not yet suffered any harm. Ibid. The Court noted the lack of expert testimony, which may be helpful in such a case. Id. at 28.

In the present case, the evidence adduced at the initial fact-finding hearing, together with the expert testimony of Dr. Miller adduced after the Division's motion for reconsideration had been granted, provide ample support for the trial judge's abuse and neglect determination. To recap, C.J. testified that K.S. had become physically violent with her on a number of occasions, punching and choking her. Q.J.'s maternal grandmother testified that she had concerns about K.S.'s behavior and Q.J.'s safety and refused to allow K.S. into the house when she was not present. Most significantly, Dr. Miller concluded that that graphic and vile nature of the threats K.S. made against his young son including the threat to kill him were to be taken seriously given K.S.'s deep anger toward the child's mother, his propensity for aggressive and violent behavior, his lack of empathy for Q.J. and his documented history of impulsivity. The combination of these factors demonstrates that K.S. is capable of acting on his threats and therefore places Q.J. at serious risk of harm from K.S.

We therefore conclude, as did the Family Part judge, that the Division met its burden of proving that K.S. posed a substantial imminent risk of serious harm to Q.J. and therefore abused and neglected his minor son.

II.

Defendant next challenges the competency of the evidence used against him during the second phase of the fact-finding hearing as inadmissible hearsay, violative of his confrontation rights. Specifically, he points to hospital discharge summaries, a Special Response Unit (SPRU) report, various psychiatric and psychological evaluations and assessments, other hospital records, a residential treatment center joint care review form, Division contact sheets, letters from The Children's Home, a psychological report by Youth Consultation Service, and a mental status report prepared by the Essex County Juvenile Detention Center.

The Division maintains all these items were properly admitted under the business records exception to the hearsay rule, N.J.R.E. 803(c)(6), because Kimberly Shipmon, who was K.S.'s caseworker for most of the time he was a minor in Division custody, testified as to the origin of the various records, their placement in the Division record and use in the regular course of the agency's business, and the purposes of the documents in case planning for K.S. and his family.

The trial judge agreed and admitted the various exhibits, reasoning:

Ms. Shipmon testified that as [K.S.'s] caseworker, she reviewed the entire existing record as she was taking over from another caseworker. . . . [I] find that a nexus does exist as it relates to the records of [K.S.] and his ability to parent his child. . . . Considering the rules of evidence that are applicable, it is necessary to review the records to determine whether or not [K.S.] poses a substantial risk of harm to his child. Hearsay exceptions, N.J.R.E. 803(c)(6), for a business record would permit the admissibility of the documents as requested by the Division, given deference to the hearsay statements that may be contained therein, as well as any diagnosis contained in medical records. . . . Clearly, the documents that are being offered are business records of either the Division or of its consultants in an attempt by the Division in a regular course of its business.

 

. . . .

 

In this within matter, the Division's use of psychological evaluation involves a consultant. . . . The evaluations of [K.S.] were arranged by the Division with routine consultants mainly for placement purposes.

 

. . . .

 

The paramount interest is the protection of [Q.J.] and the Court should not be precluded from having all of the information available in making its determination, as whether or not, [Q.J.'s] father placed the child in a substantial risk of harm. . . . As it relates to hearsay and/or diagnosis, those can be dealt with by applying the appropriate weight.

 

We discern no abuse of discretion in this ruling.

"[O]rdinarily, an evidentiary determination made during trial is entitled to deference and is to be reversed only on a finding of an abuse of discretion . . . ." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010).

Hearsay testimony is inadmissible unless it falls under one of the stated hearsay exceptions. N.J.R.E. 802; State v. Gore, 205 N.J. 363, 375 (2011). The business records exception to the hearsay rules allows into evidence

A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, 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.

 

[N.J.R.E. 803(c)(6).]

 

The party seeking to admit a hearsay statement under the business records exception

must demonstrate that 'the writing [was] made in the regular course of business,' the writing was 'prepared within a short time of the act, condition or event being described,' and 'the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence.'

[N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 347 (2010) (quoting State v. Matulewicz, 101 N.J. 27, 29 (1985)).]

 

Rule 5:12-4(d) provides that the Division "shall be permitted to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants. Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." This rule "permits the Division to introduce reports by staff personnel or professional consultants into evidence provided the documents satisfy the requirements of the business records exception, N.J.R.E. 803(c)(6) and 801(d)." N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 173 (App. Div. 2012) (citation and internal quotation marks omitted); accord N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 133 (App. Div. 2010). In M.C. III, supra, 201 N.J. at 348, the Court recognized "the Division's need to secure the services of a range of professionals when investigating a claim of child abuse[,]" and therefore the "Division's use of a disinterested treating physician is not inconsistent with the purpose of the Rule." Ibid.

In addition, N.J.S.A. 9:6-8.46(a)(3) provides that

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, or within a reasonable time thereafter, shall be prima facie evidence of the facts contained in such certification. A certification by someone other than the head of the hospital or agency shall be accompanied by a photocopy of a delegation of authority signed by both the head of the hospital or agency and by such other employees. All other circumstances of the making of the memorandum, record or photograph, including lack of personal knowledge of the making, may be proved to affect its weight, but they shall not affect its admissibility[.]

In N.J. Div. of Youth & Family Servs. v. J.T., 354 N.J. Super. 407 (App. Div. 2002), certif. denied, 175 N.J. 432 (2003), which involved an appeal of an abuse and neglect finding, we rejected the defendant's argument that records from the Hawaii Department of Human Services (DHS) were insufficiently authenticated and should not have been considered. Id. at 413-14. Working from the principle that "circumstantial evidence is acceptable for authentication of written material[,]" we noted that the documents faxed from the DHS included a cover sheet signed by a DHS caseworker, that "they were made in the ordinary course of business by a child protection agency" and that they were "also admissible by R. 5:12-4(d) as part of the Division reports." Ibid.

Here, the documents prepared and created by Division staff namely the Division case plan, a Division referral and Special Response Unit (SPRU) report, and Division contact sheets were all properly admitted as business records of the agency, N.J.A.C. 803(c)(6), because, according to Shipmon, they were made in the agency's regular course of business for the purposes of determining placement and other services for K.S. So too, the certified hospital records pertaining to K.S. were properly admitted. See Gunter v. Fischer Scientific Am., 193 N.J. Super. 688, 691-94 (App. Div. 1984); J.T., supra, 354 N.J. Super. at 413-14.

The judge also properly admitted psychological and psychiatric evaluations obtained by the Division and K.S.'s residential treatment providers for care planning purposes, as testified to by Shipmon. In this regard, Shipmon also testified that she arranged the evaluations by Drs. Figurelli and Ferretti and provided information for the doctors to use. These experts were clearly consultants of the Division, as was the mental health group (Kilbarchan Group Home) in charge of K.S.'s placement while in Division custody and who generated a service plan for K.S.6 Further admitted was a mental health report prepared and generated by Essex County Juvenile Detention Center where K.S. was placed due to charges of terroristic threats.

Save perhaps for the latter, all the challenged documents were either prepared by Division staff in the regular course of agency business, or were certified medical records, or were records of Division consultants maintained in agency files in the regular course of its business for the purpose of engaging the appropriate services and placement for K.S. As such, there was no abuse of discretion in their admission into evidence.

But even if a foundational predicate were lacking for any of the so-called "outside" documents, as K.S. claims, they were otherwise properly relied upon by Dr. Miller, see N.J.R.E. 703, whose expert opinion, along with evidence adduced during the first phase of the hearing, provide sufficient credible competent evidence to support the trial court's abuse and neglect determination. In fact, a fair reading of the court's opinion demonstrates its heavy reliance on Dr. Miller's expert testimony.

III.

Lastly, K.S. argues that the initial finding dismissing the Division's complaint is res judicata, precluding a "second trial." We disagree, as the matter was properly reopened on the Division's reconsideration motion, rather than relitigated, as K.S. contends.

Rule 4:49-2 provides that

a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court

 

has overlooked or as to which it has erred

. . . .

 

 

Reconsideration "is a matter within the sound discretion of the Court, to be exercised in the interest of justice." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).

Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence. . . .

 

Alternatively, if a litigant wishes to bring new or additional information to the Court's attention which it could not have provided on the first application, the Court should, in the interest of justice (and in the exercise of sound discretion), consider the evidence.

 

[Ibid. (quoting D'Atria, supra, 242 N.J. Super. at 401-02).]

 

However, a party is not entitled to reconsideration based on new or additional information if that information was available the first time around and counsel either overlooked it or made a tactical decision to not present it. Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 463 (App. Div.), certif. denied, 174 N.J. 544 (2002).

Here, the Division filed a motion for reconsideration of the judge's December 22, 2010 fact-finding decision on January 13, 2011. R. 4:49-2. In granting the Division's motion for reconsideration, the judge acknowledged that he initially denied the Division's application to supplement discovery with K.S.'s past Division record after the fact-finding hearing had already commenced. However, upon reading the exhibits proffered and appended to the Division's motion, the judge determined that the information contained in the Division record was sufficiently probative to warrant re-opening the case:

I have to balance today, you know, the protection of this child. . . .

 

I can't rule on the substance of these records because at this point I don't know whether they are admissible or inadmissible. . . . But on it's [sic] face, on a prima facie showing as to whether I should reopen this matter, I think that the information does become relevant for that purpose. . . .

 

[O]n it's [sic] face there's sufficient doubt in my mind as to whether [K.S.] is really at risk of harm to his child.

 

And had I had this information before, my opinion may have been different.

 

We find no abuse of discretion in the grant of the Division's reconsideration motion. The information in K.S.'s prior Division record, which detailed his past history of aggression and mental condition, was probative, competent evidence that bore directly on the question of whether K.S. posed a substantial risk of harm to his minor son. And it was evidence that the court had not considered at the initial fact-finding hearing because the report was not then available to Division counsel. Division counsel did not overlook the evidence or make a tactical decision to ignore it. Rather, according to the Division's motion, K.S.'s record did not arrive at the Bergen South Local Office from the Trenton archives until after the fact-finding hearing. The Division urged the court to reconsider the case after finally receiving the relevant records.

Clearly, the instant matter was reopened, not relitigated. Accordingly, the doctrine of res judicata and collateral estoppel, which operate to bar relitigation of any claim or issue that has already and finally been adjudicated as between the parties, In re Estate of Dawson, 136 N.J. 1, 20 (1994); Velasquez v. Franz, 123 N.J. 498, 505-06 (1991); Restatement (Second) of Judgments, 27 (1982), is simply not applicable here.

Affirmed.

 

1 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16 (eff. June 29, 2012).

2 The Division had also previously interviewed K.S. on March 8, 2010. K.S. claimed that he is a positive influence in Q.J.'s life, and has only questioned his paternity out of anger. When asked if he had, in fact, stated, "[Q.J.] can just suck my dick, [Q.J.] is a dirty little bastard and if I see him I will pull my dick out and piss on him," K.S. responded that when he gets mad, he says things that he does not mean. K.S. denied having any mental health issues or being prescribed any medications, and acknowledged that he had a former case with the Division as a minor that was closed when he turned twenty-one years old.

3 Prior to the resumption of trial, the parties reconvened on February 15, 2012, at which time the Division called Kimberly Shipmon to testify as to the documents maintained in K.S.'s Division record when he was a minor that were attached to the Division's motion for reconsideration. Shipmon is an adoption specialist with the Division who had been K.S.'s caseworker for the majority of the time he was a minor in Division custody. She began working with him in October or November of 1998. She took over K.S.'s case from another Division worker and reviewed his entire existing record when she received it. Over K.S.'s counsel's objection, the judge admitted these documents into evidence.

4 Because K.S. failed to appear for a psychological evaluation, Dr. Miller's assessment was based only on the documentary record.

5 The judge ordered that K.S. was to apply through the family court for supervised visitation with Q.J., and the matter was dismissed without prejudice.

6 Shipmon testified that it was routine for The Children's Home, an organization that provided treatment to K.S., to send her letters with updates about K.S. while he was in Division custody and that they were regularly made part of the Division's file.