DCPP VS. C.H. AND J.M., IN THE MATTER OF J.H. (FN-02-0148-15, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )


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  •                                       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    NOT FOR PUBLICATION WITHOUT THE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.
    A-5660-16T1
    2
    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."
    A-5660-16T1
    3
    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.
    A-5660-16T1
    4
    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
    A-5660-16T1
    5
    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
    A-5660-16T1
    6
    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.
    A-5660-16T1
    7
    

Document Info

Docket Number: A-5660-16T1

Filed Date: 11/30/2018

Precedential Status: Non-Precedential

Modified Date: 8/20/2019