NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.H.

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5660-16T1

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

          Plaintiff-Respondent,

v.

C.H.,

          Defendant-Appellant,

and

J.M.,

     Defendant.
__________________________________

IN THE MATTER OF J.H.,

     a Minor.
__________________________________

                    Submitted October 31, 2018 – Decided November 30, 2018

                    Before Judges Reisner and Mawla.
            On appeal from Superior Court of New Jersey,
            Chancery Division, Family Part, Bergen County,
            Docket No. FN-02-0148-15.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (John A. Albright, Designated Counsel, on
            the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jason W. Rockwell, Assistant Attorney
            General, of counsel; Sara M. Gregory, Deputy Attorney
            General, on the brief).

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

PER CURIAM

      In this Title Nine case, defendant C.H. appeals from a May 4, 2015 fact

finding order, determining that she abused or neglected her daughter J.H. 1 See

N.J.S.A. 9:6-8.21 (c)(4)(b). After reviewing the record, we conclude that the

trial judge's decision is supported by substantial credible evidence. See N.J.

Div. of Youth & Family Servs. v. M.M.,  189 N.J. 261, 279 (2007). We affirm

substantially for the reasons stated in the judge's written opinion issued with the

order. We add these comments.



1
   We use initials to protect the parties' privacy. The fact finding order was
rendered ripe for appellate review after the court entered a final order on July
20, 2017, dismissing the Title Nine litigation.
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        The evidence is discussed at length in the trial judge's opinion and can be

summarized more briefly here. C.H. and J.M. are the child's parents. After

drinking large amounts of beer in a Paterson bar, the parents returned home and

got into a drunken brawl with each other in front of the child. 2 At one point,

defendant slapped J.M.'s face, and the paternal grandmother, who lived with the

family, tried to intervene. Defendant grabbed the grandmother by the hair, and

either intentionally or accidentally caused the grandmother's head to hit a wall.

The grandmother collapsed and died. The child, who was six years old, saw

defendant assault the grandmother, and saw the grandmother collapse.

        A psychologist, Dr. Anthony D'Urso, testified that the child was

traumatized by the incident, and suffered emotional harm, plus physical

symptoms such as stomach aches. He testified that, due to the trauma, the child

required individual and family therapy. A case worker from the Division of

Child Protection and Permanency (Division), who interviewed the child several

hours after the incident, also observed the child's traumatized emotional

condition. The worker testified that it was "the saddest interview" she had ever

conducted.




2
    The child described it as "a fist fight."
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      On this appeal, defendant presents the following points of argument for

our consideration:

            I. THE FINDING OF ABUSE OR NEGLECT MUST
            BE REVERSED BECAUSE THE TRIAL JUDGE
            ERRONEOUSLY     CONCLUDED     THE  NON-
            TESTIFYING       PARENTS'     DEMEANOR
            SUPPORTED ITS FINDINGS OF FACTS.

            II. THE LOWER COURT'S CONCLUSION THAT
            J.H. SUFFERED ACTUAL EMOTIONAL HARM
            FROM WITNESSING DOMESTIC VIOLENCE AND
            SUBSTANCE ABUSE IS ERRONEOUS AND MUST
            BE REVERSED; THE VAGUE "SYMPTOMS"
            PROFERRED – SUCH AS MERE SADNESS OR
            DREAMS – FELL FAR SHORT OF ESTABLISHING
            ANY SUCH HARM.

            III. AFTER CORRECTLY RULING HEARSAY AND
            EXPERT OPINIONS CONTAINED WITHIN THE
            AUDREY      HEPBURN   CHILDREN'S  HOUSE
            REPORT WOULD BE EXCLUDED FROM
            EVIDENCE ABSENT TESTIMONY BY ITS
            AUTHOR,      THE   COURT   ERRONEOUSLY
            ADMITTED AND RELIED ON THIS SAME
            EXCLUDED EVIDENCE WHEN THE AUTHOR OF
            THE REPORT FAILED TO TESTIFY.

            IV. THE COURT ERRED IN ITS EXTENSIVE
            RELIANCE ON D'URSO'S OPINION THAT J.H.
            SUFFERED EMOTIONAL HARM BASED UPON
            OBSERVATIONS WHICH WERE NOT HIS OWN;
            [DR.] D'URSO DID NOT PERFORM THE
            EVALUATION OF J.H., THEREFORE HIS OPINION
            WAS MERELY AN IMPERMISSIBLE [] NET
            OPINION.


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      After reviewing the record, we agree with defendant that the trial court

erred in noting the parents' courtroom demeanor, because they neither testified

nor attempted to use their courtroom demeanor to influence the outcome of the

hearing. See N.J. Div. of Youth & Family Servs. v. I.S.,  422 N.J. Super. 52, 73-

74 (App. Div. 2011), aff'd in part, rev'd in part on other grounds,  214 N.J. 8

(2013); State v. Adames,  409 N.J. Super. 40, 60 (App. Div. 2009). However,

we conclude that the error – which consisted of a brief observation at the end of

the judge's lengthy opinion – was harmless. See R. 2:10-2. The judge did not

base her factual findings on the parents' demeanor. Rather, she based her

findings on the ample admissible evidence in the record.

      Defendant also contends that Dr. D'Urso should not have been permitted

to testify about a psychological report authored by one of his subordinates. In a

related point, she contends that because D'Urso did not personally observe the

child, his testimony was a net opinion. Defendant did not object to Dr. D'Urso's

trial testimony, and we conclude that she waived the arguments she now asserts

in points three and four. See N.J. Div. of Youth & Family Servs. v. M.C. III,

 201 N.J. 328, 341-42 (2010).

      Notably, Dr. D'Urso was part of a team of psychologists who evaluated

the child. He supervised the work of Dr. Mroz, who interviewed the child and


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later provided her with therapy. Following a process he described as standard

protocol in the field of psychology, Dr. D'Urso collaborated with Dr. Mroz in

preparing a report on the child's condition, and reviewed and signed off on Dr.

Mroz's findings. In this case, Dr. Mroz was also present in court and actually

testified just before the Division presented D'Urso's testimony. Dr. Mroz's

testimony was given in the context of a defense motion to allow the child to visit

her parents in the Bergen County Jail. Dr. Mroz testified at length about the

trauma the child had suffered as a result of witnessing the domestic violence

between her parents, and seeing her grandmother die during the incident.

Defense counsel cross-examined Dr. Mroz on her opinions. Immediately, after

the motion hearing concluded, the fact finding trial continued before the same

trial judge, with Dr. D'Urso as the Division's witness. Had defendant timely

objected to Dr. D'Urso's testimony, on the grounds that Dr. Mroz and not Dr.

D'Urso had interviewed the child, the Division could have had Dr. Mroz testify.

Instead, Dr. D'Urso testified, without objection.

      Against that backdrop, we conclude that defendant waived any objection

to Dr. D'Urso's testimony. See M.C. III,  201 N.J. at 341-42. Additionally,

defendant did not raise before the trial judge the issues she now presents,

concerning D'Urso's alleged net opinions or the admissibility of his testimony


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about the child's trauma. However, even if we consider those belated arguments,

we find they are unsupported by the record and are without sufficient merit to

warrant further discussion. R. 2:11-3(e)(1)(E). We find no abuse of the trial

judge's discretion in considering D'Urso's testimony. See N.J. Div. of Child

Prot. & Permanency v. K.G.,  445 N.J. Super. 324, 342 (App. Div. 2016).

      As previously noted, the judge's factual findings concerning the

underlying domestic violence, the child's having witnessed domestic violence ,

and the serious emotional harm it caused the child, are supported by substantial

credible evidence. The record does not support defendant's efforts to minimize

the evidence of trauma to the child. We, therefore, affirm the order on appeal.

      Affirmed.




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