DCPP VS. T.U.B. AND J.E.C.IN THE MATTER OF THE GUARDIANSHIP OF C.I.B. (FG-07-164-14, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2017 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2565-15T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v.
May 22, 2017
T.U.B.,
APPELLATE DIVISION
Defendant,
and
J.E.C.,
Defendant-Appellant.
_________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF C.I.B., a Minor.
_________________________________
Argued April 24, 2017 – Decided May 22, 2017
Before Judges Sabatino, Currier and Geiger.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex
County, Docket No. FG-07-164-14.
James Gentile, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Mr. Gentile, on
the briefs).
Michelle Cort-Hourie, Deputy Attorney
General, argued the cause for respondent
(Christopher S. Porrino, Attorney General,
attorney; Andrea M. Silkowitz, Assistant
Attorney General, of counsel; Ms. Cort-
Hourie, on the briefs).
James A. Louis, Deputy Public Defender,
argued the cause for minor C.I.B. (Joseph E.
Krakora, Public Defender, Law Guardian,
attorney; Danielle Ruiz, Designated Counsel,
on the briefs; Mr. Louis and Olivia Belfatto
Crisp, Assistant Deputy Public Defender, on
the brief).
J. David Pollock argued the cause for amicus
curiae John J. Gibbons Fellowship in Public
Interest and Constitutional Law at Gibbons,
P.C. (Gibbons P.C., attorneys; Lawrence S.
Lustberg and Mr. Pollock, on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
This appeal by a father from a final judgment terminating
his parental rights in a Title 30 guardianship case raises an
important and recurring legal issue of statutory construction.
The issue is whether the special evidentiary provision for Title
9 cases codified at N.J.S.A. 9:6-8.46(a)(4), allowing the
admission of certain hearsay statements by children about
corroborated allegations of abuse or neglect, likewise applies
in Title 30 guardianship cases involving the termination of
parental rights. That hearsay exception reads, in pertinent
part, as follows:
In any hearing under this act, including an
administrative hearing held in accordance
with the 'Administrative Procedure Act,'
P.L. 1968, c. 410 (C. 52:14B-1 et
seq.), . . . (4) previous statements made by
2 A-2565-15T2
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.
[N.J.S.A. 9:6-8.46(a)(4).]
For the reasons that follow, we conclude that the plain
meaning of this statutory provision confines the use of this
special pathway for the admission of hearsay by children to
Title 9 proceedings and does not extend to Title 30 guardianship
trials involving the termination of parental rights. We reach
this conclusion mindful that this hearsay exception has been
mistakenly applied at times in the past in some Title 30
termination proceedings, albeit apparently without the benefit
of the rigorous legal analysis and advocacy that have been
provided to us by counsel in this appeal. We are also mindful
that the Legislature retains the ability to adopt a curative
amendment to Title 30 to extend the hearsay exception in
N.J.S.A. 9:6-8.46(a)(4) to future termination proceedings, if it
chooses to do so in the wake of this opinion.
The trial court in this case impermissibly relied upon
hearsay statements by children that it admitted, over objection,
under N.J.S.A. 9:6-8.46(a)(4). The hearsay involved allegations
of sexual abuse that were later in part recanted by one of the
non-testifying child declarants. The trial court accepted the
3 A-2565-15T2
truth of those allegations, which were not directly corroborated
by independent admissible proof that defendant did, in fact,
sexually assault the girls.
The evidential error appears to have affected the trial
court's assessment of whether the Division of Child Protection
and Permanency ("the Division") met its burden of proof on
prongs one, two, and four of the termination criteria under
N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. We
therefore vacate the final judgment with respect to those three
prongs, and remand for the trial court to reconsider its
decision without reference to or reliance upon the sexual abuse
hearsay. We affirm, however, the court's discrete findings with
respect to prong three concerning the provision of services and
the absence of other suitable relatives to serve as caretakers.
I.
This case hinges upon the trial court's admission and
reliance upon highly inculpatory hearsay statements of two non-
party female minors, J.H. ("Jenny") and S.C. ("Sandy"),1 who did
not testify at the Title 30 guardianship trial. The girls
alleged that acts of sexual abuse were committed against them by
1
We use initials and fictitious names to protect the identity
and privacy of the minors and other persons involved in this
case.
4 A-2565-15T2
defendant J.E.C. during a time frame when defendant and his
minor son C.I.B. ("Calvin") were living in their household with
the girls' mother, defendant's girlfriend, T.C.
The Background
Calvin was born in May 2008. His biological mother is
T.U.B., and his biological father is defendant. T.U.B. is the
biological mother of eight additional children with other
fathers. Defendant himself has two other children, one of whom
is an adult. Neither of his other children lived with him at
the times relevant to this case, and they are not the subject of
this litigation.
Before Calvin's birth, the Division had received several
reports of parental abuse and neglect of T.U.B.'s children in
her house. In November 2007, the Division conducted an
emergency "Dodd" removal2 of five of T.U.B.'s children from her
home. The Division received a sixth referral in May 2008
concerning T.U.B. shortly after Calvin was born, but allowed
Calvin to remain in her home while she was offered services.
About a year later, in May 2009, T.U.B. brought Calvin to
live with defendant and his paramour T.C., because T.U.B. was
2
A Dodd removal is an emergent removal of a minor without a
court order pursuant to N.J.S.A. 9:6-8.21 to -8.82 known as the
Dodd Act. N.J. Div. of Youth & Fam. Servs. v. P.W.R., 205 N.J.
17, 26 n.11 (2011).
5 A-2565-15T2
unable to continue to keep Calvin in her mother's apartment.
The parents entered at that time into a case plan with the
Division, agreeing that Calvin would remain in defendant's
physical custody. Not long after that, defendant was granted
temporary physical custody of Calvin, with T.U.B.'s consent.
Eventually, in May 2010, T.U.B. voluntarily surrendered her
custodial rights over Calvin. Meanwhile, Calvin continued to
reside with defendant, T.C., T.C.'s two daughters, Jenny and
Sandy, and her minor son.3
The Two Girls' Allegations of Sexual Abuse
In the latter part of 2010, Jenny, who was then eleven
years old, reported to a teacher that defendant had been
sexually abusing both her and her sister Sandy on multiple
occasions over a period of several years. Upon learning of
these allegations, the Division arranged a psychosexual
evaluation of defendant by a psychological expert, Barry A.
Katz, Ph.D.
In his written report from 2010 based on the Division's
files, Dr. Katz noted there were "significant and extensive
contradictions in [Jenny's] reporting regarding the abuse."
Jenny initially reported that she had been raped by defendant.
3
The facts and issues in the present litigation do not concern
T.C.'s minor son.
6 A-2565-15T2
However, she later informed a caseworker that defendant had
"touched [the] inside of her panties." She separately told
hospital staff that he had only touched her over her clothing
and that nothing further had happened. In addition, Dr. Katz
noted that both Sandy and Jenny's father had denied Jenny's
claims that defendant had also molested Sandy and that the two
girls had fled T.C.'s home to go to Jenny's father's house.
Moreover, medical evaluations of the girls revealed no signs of
bruising, trauma, or injury.
Defendant was not criminally charged with sexual wrongs or
any other offenses. However, the Division administratively
substantiated him for sexual molestation of Jenny. He denied,
and continues to deny, engaging in any sexual abuse of Jenny or
Sandy.
Dr. Katz stated in his 2010 report that there was "no
reliable data . . . to indicate that [defendant was] a current
risk of sexually acting out on a child." Based on the
information then available to him, Dr. Katz found "insufficient
evidence to conclude that [defendant] was a danger to a child in
his care." By way of qualification, Dr. Katz did comment that
"[a]dditional data would be helpful and relevant to increasing
the accuracy of [his] assessment." That information could
include details of the family's past involvement with the
7 A-2565-15T2
Division, results of diagnostic evaluations of the children,
details of defendant's criminal history, and a copy of Jenny's
personal journal in which she had reportedly discussed the
abuse.
In May 2012, the Division received a referral reporting
that a physical altercation had taken place at T.C.'s home
between defendant and Sandy's biological father, T.J. T.J.
informed Division investigators that he had struck defendant
because he had been told that defendant had molested the girls.
The Division accordingly interviewed Sandy and Jenny, both of
whom claimed in their interviews to have been sexually abused by
defendant.
Proceedings in the Family Part and Related Developments
In June 2012, a judge in the Family Part awarded the
Division the care and supervision, but not custody, of T.C.'s
children. Defendant was ordered to stay out of T.C.'s home.
The court apparently was not aware that Calvin was also residing
in T.C.'s home at the time.
On June 22, 2012, the Division received a referral from an
East Orange police officer, stating that she had responded to
T.C.'s home where T.U.B. had gone to take physical custody of
Calvin. The officer had taken T.C. and Calvin to the police
station because T.U.B., who had not seen Calvin for more than a
8 A-2565-15T2
year, was demanding custody, and defendant's whereabouts were
then unknown. T.U.B. reported that she had received a message
on social media about the fight between T.J. and defendant.
T.U.B. further claimed that she had seen messages between
defendant and Sandy. The messages indicated to T.U.B. they were
in a relationship, and that Sandy had been pregnant and had an
abortion.4
The Division at that point conducted a Dodd removal of
Calvin from T.C.'s residence. It took that action because (1)
defendant's whereabouts were unknown, (2) T.C. was not the legal
guardian of Calvin, and she had an open case with the Division,
and (3) T.U.B. did not have residential custody of Calvin, had a
significant history herself with the Division, and had care and
custody of only three of her eight biological children.
Four days later, the Division filed a complaint for custody
of Calvin, which the Family Part granted. The judge ordered
weekly supervised visitation with Calvin for all defendants,
including T.C. The Division referred defendant to a supervised
visitation program at Reunity House in East Orange. That
program included weekly therapeutic supervised visitation and
weekly parenting skills group sessions. The Division also
4
The messages were not moved into evidence, so there was no
appropriate proof of their contents. See N.J.R.E. 1002.
9 A-2565-15T2
offered transportation.
In August 2012, Calvin was evaluated at the Metro Regional
Diagnostic and Treatment Center ("RDTC") at Children's Hospital
of New Jersey. The RDTC reported that Calvin was
"developmentally delayed in communication skills, fine motor
skills, problem solving skills, and personal social skills."
The RDTC also noted that Calvin's resource parent had reported
he displayed "significant emotional and behavioral problems
including temper tantrums, defiance, and oppositionality."
In September 2012, Calvin was again evaluated by the RDTC,
which concluded he exhibited "[s]low growth – possible failure
to thrive." The RDTC recommended that Calvin continue to see a
nutritionist, and that defendant participate in the visits and
receive parenting skills training to "improve [Calvin's] eating
behaviors and food intake," and to work on disciplinary skills.
In November 2012, the scheduled date for a fact-finding
hearing, the Division requested that the Title 9 allegations be
withdrawn and the matter go forward instead under Title 30. The
Family Part consequently ordered that the matter "proceed
pursuant to Title 30 as child welfare concerns exist[ed] and the
family [was] in need of . . . services." The court advised
counsel that at the next hearing it would "consider whether
[Calvin] should be immediately placed with [T.C.]."
10 A-2565-15T2
On November 13, 2012, the Division received a report that
defendant was then living at T.C.'s house, despite the court's
outstanding order prohibiting him from doing so. However, the
girls, T.C.'s son, T.C., and defendant all denied that he was
residing there. During its investigation, the Division learned
that Jenny was not registered for school. T.C. was accordingly
substantiated for educational neglect.
A week later, the Division received a second referral,
which reported that defendant had been residing in T.C.'s home
for over a month. Although T.C., Jenny, and Sandy denied that
defendant was living there, T.C.'s son privately told a Division
supervisor, Ines Perez-Nin, that defendant had been staying at
the home two nights a week. Because defendant had been court-
ordered to remain out of T.C.'s home, the children were
accordingly removed by the Division from T.C.'s care on November
26, 2012.
The following day, Perez-Nin interviewed Jenny and Sandy.
Both girls confirmed to her that defendant had been residing in
T.C.'s home. In addition, Jenny stated to Perez-Nin that
defendant had been sexually abusing her since she was seven
years old. Sandy, meanwhile, told Perez-Nin that she had been
having sex with defendant three to four times per week. Sandy
further revealed that she had become pregnant the previous year,
11 A-2565-15T2
and that defendant had taken her to get an abortion.5
Additional Expert Evaluations
The Division thereafter referred defendant for an
evaluation by Dr. Mark Singer, a licensed psychologist, in April
2013. During that evaluation, defendant "denied ever engaging
in inappropriate sexual contact with any minor [or] taking any
minor for any medical procedure related to termination of
pregnancy." Dr. Singer recommended that defendant complete
parenting skills training, and that he also participate in
individual therapy.
In addition, the Division referred defendant for a
psychosexual reevaluation, which was again performed by Dr. Katz
in July 2013. In his updated 2013 report, Dr. Katz noted that
when asked if he had taken Sandy for a medical procedure,
defendant stated that he had taken her to a hospital, and the
doctor there told him that she had a cyst on her ovary and
5
At defendant's later guardianship trial, the Division admitted
into evidence, without objection from defense counsel, the
medical records from that abortion procedure. The records,
supplied with a certification from the medical office, reflected
that defendant, posing as Sandy's father, had accompanied her to
the abortion and provided consent for the fourteen-year-old to
have the procedure. The record reflects that Sandy told the
clinic that she was pregnant because of her "boyfriend [who] is
[the] same age . . . [and] he did not make her have sex with
him." As such, the record by its terms does not corroborate
that defendant sexually abused Sandy, although we recognize the
possibility that defendant could have persuaded Sandy to
fabricate that her boyfriend had gotten her pregnant.
12 A-2565-15T2
surgery was performed the same day. Defendant told Dr. Katz
that he had taken Sandy for surgery because T.C. could not
drive, and she was watching her other children and Calvin. He
also admitted signing the medical consent form, even though he
was not Sandy's guardian.
Dr. Katz noted in his reevaluation that there was
"sufficient evidence to conclude that there [were] concerns
regarding the risk that [defendant] may pose to a child in his
care." Further, he stated that "[if] the children's reports
[were] accurate, then it would indicate that [defendant was] a
moderate risk offender."
Dr. Katz considered defendant to be "a lower risk to a
child in the community, but a higher risk to a child placed in
his care." He acknowledged that additional data would be
relevant to increasing the accuracy of his assessment, including
a criminal history for defendant, a copy of Jenny's journal, and
relevant hospital records for the children. Dr. Katz
recommended that defendant not have unsupervised visitation
until such additional data was collected and reviewed, and that
defendant engage in therapy with a professional competent in
treating sexual offenders.
The trial court ordered defendant to comply with the
recommendations from Dr. Katz's psychosexual reevaluation.
13 A-2565-15T2
However, defendant resisted doing so, arguing that the Division
had not provided sufficient proof of the sexual abuse
allegations.
Defendant was discharged from the Reunity House program for
inconsistent attendance. He also missed numerous parenting
skills classes. In addition, defendant was inconsistent in
attending supervised visits with Calvin, and he eventually
stopped visits altogether. At a family team meeting in April
2014, defendant did agree to comply with parenting skills
classes, individual therapy, and supervised visitation. Again,
he did not follow through.
Meanwhile, Calvin's resource parent withdrew her interest
in adopting him after having initially expressed interest in
doing so. The Division consequently changed its plan for Calvin
to "select home adoption," anticipating the possibility that a
different adoptive parent or family might materialize.6
Although T.U.B. temporarily sought custody of Calvin, that
effort ultimately failed when she lost her housing, and she,
too, did not visit him. At an October 2014 permanency hearing,
6
The resource parent later renewed her interest in becoming an
adoptive parent. However, as of the time of oral argument of
this appeal, counsel confirmed to us that Calvin's status was
"select home adoption," there being no adoptive parent presently
in the wings.
14 A-2565-15T2
the trial court consequently approved the Division's plan to
terminate the parental rights of both defendant and T.U.B.
The Guardianship Trial and Defendant's Hearsay Objections
The lengthy guardianship trial took place over ten
intermittent trial days from February 2015 through January 2016.
The Division presented expert testimony from Dr. Elizabeth M.
Smith, a licensed psychologist, and Dr. Katz. The Division also
presented factual testimony from caseworker Emerald Irby and
supervisor Perez-Nin, who recounted the Division's investigation
and efforts concerning Calvin and the family. The alleged
victims of sexual abuse, Jenny and Sandy, did not testify. None
of the testifying witnesses had any personal knowledge regarding
the truth of the girls' sexual abuse allegations.
During the course of the trial, defendant's counsel
objected to the admission of the hearsay allegations of sexual
abuse by Jenny and Sandy contained in four of the Division's
exhibits, specifically P-22, P-53, P-58, and P-122. The
Division countered that the girls' hearsay allegations were
admissible under N.J.S.A. 9:6-8.46(a)(4), and that they had been
sufficiently corroborated.
After considering written arguments by the parties, the
trial judge overruled defendant's objection. The judge reasoned
that Title 9 and Title 30 should be "construed together as a
15 A-2565-15T2
unitary and harmonious whole" and, therefore, the hearsay
exception of N.J.S.A. 9:6-8.46(a)(4) was applicable to this
termination proceeding. The judge clarified that the admission
of the girls' hearsay statements did not diminish the Division's
ultimate burden of establishing the criteria for termination by
clear and convincing proof. Defendant later objected to similar
hearsay from the girls being presented through testimony from
Perez-Nin, an objection which the court likewise overruled.
The subject of the girls' sexual abuse allegations was
addressed at considerable length in Dr. Katz's trial testimony.
Dr. Katz acknowledged that when he had conducted defendant's
initial evaluation five years earlier in November 2010, he found
it significant that Jenny had recanted parts of her allegations
and that there was "non-corroborating information in the record
about her reporting." Even so, Dr. Katz pointed out that it was
not uncommon for victims to recant abuse allegations,
"especially when other family members may not believe or be
supportive of the allegation."
Dr. Katz went on to discuss his reevaluation of defendant
in July 2013, which included the allegation that defendant had
taken Sandy to get an abortion. As a preliminary point, Dr.
Katz found it significant that defendant had violated a court
order by returning to T.C.'s home. The expert also noted that
16 A-2565-15T2
defendant had provided contradictory responses about whether he
had taken Sandy to a medical facility for the purpose of an
abortion.
Later during Dr. Katz's trial testimony, the Division
questioned him about Sandy's medical records from her abortion,
documents he had not reviewed earlier for his 2013 report. Dr.
Katz testified that those records, in his opinion, did
"corroborate [Sandy's] report and contradict [defendant's]
report as well as corroborate her allegation of this sexual
abuse." He testified these records were "significant" because
the corroboration of Sandy's abortion account "would confirm and
strengthen the opinions of the 2013 report and given much
greater confidence regarding the child's reporting regarding –
and raising [defendant's] risk." Dr. Katz concluded that based
on these records, defendant could not provide a safe home now or
in the foreseeable future.
The Law Guardian did not introduce evidence nor offer any
witnesses at trial. Nor did T.U.B., who did not appear at
trial.7
7
As we have noted, T.U.B. executed an identified surrender of
her parental rights before the trial, but the court later
vacated T.U.B.'s surrender after Calvin was removed from his
foster parent. For a period of time, T.U.B. participated in
visitation with Calvin, but she ultimately became noncompliant.
The Division presented evidence at the guardianship trial
(continued)
17 A-2565-15T2
In his own case-in-chief, defendant called Laura
Montgomery, a licensed clinical social worker who was Calvin's
therapist, and attempted to call T.C. Montgomery testified
that, in response to an inquiry from Perez-Nin, she had
recommended that visitation for defendant not be reinstated
because she believed the visits would be disruptive to Calvin.
Defendant argued in summation that Montgomery's testimony helped
to explain, in a benign manner, why he had stopped visiting
Calvin.
Over the Division's objection, defendant proffered that
T.C. would provide limited testimony that Jenny was currently
residing with defendant and T.C., allegedly with no problems.
Defense counsel argued such testimony from T.C. would be
relevant "in large part due to allegations that [defendant]
sexually assaulted" Jenny.8
The judge disagreed, and excluded T.C.'s testimony. She
ruled that the sexual abuse allegations were not the "only"
allegations against defendant, and that by allowing T.C. to
(continued)
specifically tailored to T.U.B., and ultimately the judge
terminated her parental rights as well as defendant's. T.U.B.
has not appealed her termination.
8
Although the Law Guardian supported the termination of
defendant's parental rights, she agreed with defense counsel
that T.C. should be permitted to testify.
18 A-2565-15T2
testify it would "open[] up a can of worms." The judge found
where Jenny was then currently living was not "part of this
case," and that T.C.'s testimony would "open[] up many things
going back to the allegations of the sexual abuse which are not
part of this hearing."
Defendant did not present any further evidence, and he did
not testify.
The Trial Court's Termination Decision
The trial judge issued a lengthy written opinion on
February 10, 2016, concluding that the Division had met its
burden by clear and convincing evidence to satisfy all four
prongs for termination set forth in N.J.S.A. 30:4C-15.1(a).
With respect to the first prong of proven endangerment,
N.J.S.A. 30:4C-15.1(a)(1), the judge commented on several
things. First, the judge noted that Calvin had been removed by
the Division from the home because defendant's whereabouts were
then unknown. She found it significant that defendant had
improperly left Calvin in T.C.'s care, even though she did not
have legal custody over him and had no authority to act as his
custodian in an emergency situation. The judge also noted that
Calvin had developmental delays and other special needs, which
were not being addressed until the Division had intervened.
Most significantly with respect to the present appeal, the
19 A-2565-15T2
trial judge emphasized that defendant was "a [s]ubstantiated
perpetrator of sexual abuse." The judge accepted as true the
hearsay allegations of Jenny and Sandy concerning that alleged
abuse.
Specifically, the judge found that defendant's behavior "in
repeatedly sexually abusing [Jenny and Sandy] three to four
times a week each . . . demonstrate[d] a consistent pattern of
egregious acts of abuse or neglect that [the court could] not
and [would] not ignore." (Internal quotation omitted). She
added that the court did "not need to wait for [defendant] to
continue his pattern of egregious child abuse by making [Calvin]
his next victim."9 The judge also noted the risks of re-offense
by defendant identified in Dr. Katz's evaluations and trial
testimony, as well as his failures to comply with therapy and
other programs that might address and abate those risks.
Apart from these facets relating to the alleged sexual
abuse, the judge also underscored defendant's failure to attend
parenting skills classes and avail himself of other services
9
At oral argument on appeal, the Deputy Attorney General
acknowledged that there is no specific evidence in the record
that this defendant has a proclivity to sexually abuse a male
child. Nor is there evidence in the record that defendant
sexually abused either of the two girls in Calvin's presence.
That said, we by no means discount the serious potential risks
of harm to Calvin if the allegations of sexual abuse by the
minor females are indeed true.
20 A-2565-15T2
offered by the Division. The judge lamented defendant's
repeated failures to attend supervised visitations with Calvin,
noting that defendant had not visited his son since April 2014,
a gap of almost two years. She also pointed out defendant's
failure to obtain suitable housing. The judge credited Dr.
Smith's testimony that these failures had contributed to
Calvin's ongoing behavioral issues. The judge specifically
found that Calvin had "endured great emotional harm due to being
displaced from his parents for over three years[.]"
These findings as to prong one supplied corresponding
support for the judge's conclusion on prong two that defendant
was unwilling or unlikely to eliminate the risk of harm to
Calvin in the future. N.J.S.A. 30:4C-15.1(a)(2). On this
prong, the judge again pointed to, among other things,
defendant's failures to comply with the therapy and other
services, participate in visitation, obtain stable housing
separate from T.C., and participate in a bonding evaluation.
Addressing the third prong of the termination statute,
N.J.S.A. 30:4C-15.1(a)(3), the judge concluded that the Division
had made reasonable efforts to provide services to defendant and
Calvin. In addition, she found under prong three that "[t]he
Division fully assessed the relative caretakers that were
offered and all were ruled out."
21 A-2565-15T2
Finally, the judge concluded under the fourth prong of the
statute that termination of defendant's parental rights would
not do Calvin more harm than good. N.J.S.A. 30:4C-15.1(a)(4).
In this regard, she expressly concluded that that there was "no
realistic likelihood that [defendant would] be able to safely
and appropriately care for [Calvin] now or in the foreseeable
future."
Again referring to the allegations of sexual abuse, the
judge emphasized on prong four that defendant had "not
demonstrated a commitment to addressing his deviant sexual
behavior and poor parenting skills which pose a risk of harm to
[Calvin]." She emphasized that defendant had "failed to
complete any services that address[ed] his [s]ubstantiation for
child sexual abuse [and] ha[d] not attended parenting skills
[classes] which would have assisted [him] in learning how to
parent [Calvin], a child with medical and behavioral issues."
The judge reiterated that defendant had failed to visit Calvin.
She noted that both testifying experts, Dr. Katz and Dr. Smith,
had opined that defendant's parental rights should be
terminated. Lastly, the judge emphasized Calvin's strong need
for permanency.
Defendant thereafter filed the present appeal, which both
the Division and the Law Guardian oppose.
22 A-2565-15T2
II.
Although defendant argues the trial court's findings on all
four criteria for termination are flawed for numerous reasons,
his main legal point concerns the court's admission over
objection, and its reliance upon, the hearsay allegations of
sexual abuse conveyed by T.C.'s minor daughters, Jenny and
Sandy.
Defendant submits that, as a matter of law, the hearsay
exception adopted by the Legislature and codified at N.J.S.A.
9:6-8.46(a)(4) applies only in child abuse-or-neglect
proceedings litigated under Title 9. He contends that the
hearsay exception does not apply to termination of parental
rights cases litigated, as here, under Title 30, a context in
which the stakes for a parent are markedly higher and in which
the Division's burden of proof is more stringent.
Defendant asserts the trial court erred in overruling his
repeated objections to the minors' hearsay statements. He
maintains that the court further erred in relying on the truth
of those allegations in its analysis of the statutory predicates
for termination. He argues that these errors were not harmless,
and that he is entitled to a new guardianship trial.
Defendant is joined in his arguments for reversal by amicus
curiae, The John J. Gibbons Fellowship in Public Interest and
23 A-2565-15T2
Constitutional Law. As a contingent argument, amicus contends
that the trial court's admission and reliance upon the minors'
hearsay statements deprived defendant of his constitutional
rights of due process of law.
In response, the Division and the Law Guardian contend that
the Legislature did not intend to confine the hearsay exception
in N.J.S.A. 9:8-46(a)(4) to Title 9 proceedings, and that the
provision equally applies to Title 30 guardianship trials. They
assert that Title 9 and Title 30 are to be construed "in para
materia." Consequently, they urge that the special hearsay
exception designed to ease the Division's evidentiary burden in
Title 9 cases should logically apply likewise in Title 30
guardianship proceedings. Respondents also point out that our
trial and appellate courts have applied the Title 9 hearsay
exception to termination cases in several prior unreported
opinions.
Further, as a policy matter, the Division contends in its
own brief that it will impose undue burdens on the Division and
upon abused children to disallow their hearsay statements and
require them to testify in court at Title 30 trials.
Alternatively, the Division argues that the girls' statements in
this case about the alleged sexual abuse were admissible under
N.J.R.E. 703 through the expert testimony of Dr. Katz. The
24 A-2565-15T2
Division further argues that, even if the hearsay statements of
T.C.'s daughters are disregarded, there is ample independent
evidence in the record to support the trial court's findings as
to the four termination factors. The Law Guardian at oral
argument echoed these contentions.
A.
For proper context, we present the full current text of
N.J.S.A. 9:6-8.46(a). The portion of the statute at the crux of
this appeal appears in subsection (a)(4):
a. In any hearing under this act, including
an administrative hearing held in accordance
with the "Administrative Procedure Act,"
P.L. 1968, c. 410 (C. 52:14B-1 et seq.), (1)
proof of the abuse or neglect of one child
shall be admissible evidence on the issue of
the abuse or neglect of any other child of,
or the responsibility of, the parent or
guardian and (2) proof of injuries sustained
by a child or of the condition of a child of
such a nature as would ordinarily not be
sustained or exist except by reason of the
acts or omissions of the parent or guardian
shall be prima facie evidence that a child
of, or who is the responsibility of such
person is an abused or neglected child, and
(3) 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
25 A-2565-15T2
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 and (4) previous
[10]
statements made by the child relating to
any allegations of abuse or neglect shall be
jadmissible in evidence; provided, however,
that no such statement, if uncorroborated,
shall be sufficient to make a fact finding
of abuse or neglect.
10
The statute does not define who can qualify as "the child"
whose statements are eligible for this hearsay exception. In
particular, it is unclear whether "the child" under subsection
(a)(4) can be a non-party hearsay declarant who is not a child
of the defendant parent or guardian whose rights are at issue.
The parties have not briefed this specific question. At oral
argument on the appeal, the Deputy Attorney General suggested
that the term "the child" in subsection (a)(4) pertains to any
child, pointing to subsection (a)(1)'s reference to proof of the
abuse or neglect of one child being admissible as proof of the
abuse or neglect of another child. See N.J.S.A. 9:6-8.46(a)(1).
However, subsection (a)(1) does not say that hearsay or
inadmissible proof of abuse as to one child is admissible to
support this other-child inference. In any event, because this
discrete sub-issue has not been briefed, we shall assume, but
not decide, that the term "child" does extend to non-party
children such as Jenny and Sandy in this case. See Sklodowsky
v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) (expressing
our general reluctance to address issues that were not briefed
on appeal).
26 A-2565-15T2
[N.J.S.A. 9:6-8.46(a) (emphasis added).]
In construing the meaning of these provisions, we are
guided by longstanding principles of statutory construction.
When interpreting a statute, a court's primary goal is to give
effect to the intent of the Legislature. In re N.B., 222 N.J.
87, 98 (2015). "[T]he best indicator of that intent is the
plain language chosen by the Legislature." Ibid. (alteration
in original) (quoting State v. Gandhi, 201 N.J. 161, 176
(2010)). "[W]ords and phrases shall be read and construed with
their context, and shall, unless inconsistent with the manifest
intent of the Legislature or unless another or different meaning
is expressly indicated, be given their generally accepted
meaning, according to the approved usage of the language."
N.J.S.A. 1:1-1; accord N.B., supra, 222 N.J. at 98.
"If the statute is clear and unambiguous on its face and
admits of only one interpretation, [a court] need delve no
deeper than the act's literal terms to divine the Legislature's
intent." State v. Butler, 89 N.J. 220, 226 (1982); accord
Gandhi, supra, 201 N.J. at 180-81. "A court may neither rewrite
a plainly-written enactment of the Legislature nor presume that
the Legislature intended something other than that expressed by
way of the plain language." O'Connell v. State, 171 N.J. 484,
488 (2002).
27 A-2565-15T2
That said, where there is more than one plausible
interpretation, or where a literal reading of the statute would
yield an absurd result, a court may turn to extrinsic evidence
to assist in its interpretation of legislative intent. N.B.,
supra, 222 N.J. at 98-99; see also Wilson ex rel. Manzano v.
City of Jersey City, 209 N.J. 558, 572 (2012). Such extrinsic
evidence may include, for example, a statute's legislative
history, committee reports, and the law's contemporaneous
construction. N.B., supra, 222 N.J. at 98; see, e.g.,
DiProspero v. Penn, 183 N.J. 477, 492-93 (2005) (examining such
extrinsic aids, including pertinent legislative history, in
construing the meaning of a contested aspect of the Automobile
Insurance Cost Saving Reform Act).
Applying those principles of construction here, we conclude
that the plain meaning of the terms of N.J.S.A. 9:6-8.46(a)(4)
is to confine that discrete hearsay exception to abuse-or-
neglect cases litigated in Title 9 proceedings. The Title 9
provision simply does not apply in Title 30 termination cases,
even though that inapplicability may pose evidential
difficulties for the Division in such matters.
B.
A key factor that informs our plain-meaning analysis is
that the hearsay exception in question appears only in Title 9
28 A-2565-15T2
of our State's statutes. It is not repeated or incorporated by
reference anywhere within Title 30. Significantly, the first
line of subsection (a) of N.J.S.A. 9:6-8.46 begins with this
contextual and limiting phrase: "In any hearing under this
act . . . ." (Emphasis added). By using the prefatory term
"this act," the Legislature plainly conveyed that the
evidentiary provisions set forth within subsection (a)(1)
through (4) are all special rules intended to override or
qualify the general rules of evidence, but for Title 9
proceedings only.
Although we need not necessarily consider extrinsic
sources, the relevant legislative history reinforces this
conclusion about the plain meaning of the statute. Throughout
the history of our State's codified child welfare laws, the
Legislature has repeatedly addressed abuse or neglect
proceedings and proceedings to terminate a parent's rights in
separate portions of the New Jersey statutes.
Before 1951, the child welfare laws in our State were
fundamentally criminal in nature. The Legislature first
codified child welfare penalties in L. 1915, c. 246. The Act,
spanning ten sections, criminalized such conduct as child abuse,
abandonment, neglect, and cruelty. Ibid. Although civil
aspects were present (such as provisions for a child's placement
29 A-2565-15T2
following a defendant's conviction), the Act contained mostly
criminal components, including the possibility of jail time of
up to one year. Ibid.In 1939, the Legislature amended Title 9 to enable other
entities apart from prosecutors, such as school boards,
municipalities, and private child welfare organizations, to
"prefer a complaint" for suspected child abandonment, abuse,
neglect, or cruelty. L. 1939, c. 277. That enactment stated
that such bodies, by filing such complaints, may "cause to be
arrested and prosecuted any person who shall offend against" the
chapter's provisions. Ibid.A State agency to administer child welfare cases was
statutorily created in Title 30 by L. 1951, c. 138, codified at
N.J.S.A. 30:4C-1, -2. The agency's name has changed over the
years and is currently known as the Division of Child Protection
and Permanency. "[F]or all purposes [the Division is] deemed a
continuation" of previous State child welfare agencies.
N.J.S.A. 30:4C-2.1.
As adopted in 1951, Chapter 138 largely established the
modern framework and contents of Title 30. The enactment
consisted of forty sections. L. 1951, c. 138. Specifically,
the statute concerned "the care, custody, guardianship,
maintenance and supervision of dependent and neglected
30 A-2565-15T2
children[.]" Ibid. Although the statute was mostly about
guardianship matters, the Act also directed the new State agency
to administer Title 9. Id. at § 4. Among other things, Chapter
138 empowered the agency to file a complaint for guardianship
after a Title 9 abuse or neglect determination. Id. at § 15.
In 1971, and again in 1974, the Legislature enacted two
major overhauls that largely govern today's abuse or neglect
("FN") docket in Title 9 proceedings. First, L. 1971, c. 437,
was passed "for the protection of children under 18 years of age
who have had serious injury inflicted upon them by other than
accidental means." That 1971 statute inserted eight new
sections into Title 9, so as "to assure that the lives of
innocent children are immediately safeguarded from further
injury and possible death and that the legal rights of such
children are fully protected." Id. at § 1. The 1971 statute
redefined what constitutes child abuse, id. at § 2, and how to
report such child abuse, id. at § 3. The law directed the
agency (then known as the Bureau of Children's Services) to
administer the act. Id. at §§ 4, 5 & 8.
The hearsay exception at issue in this case was enacted in
1974 and codified at N.J.S.A. 9:6-8.46(a)(4). The Legislature
approved this measure through L. 1974, c. 119, § 26, which
passed on October 10, 1974. Notably, the preface to that
31 A-2565-15T2
chapter reads: "An act concerning the manner of disposition of
cases of child abuse or neglect, revising parts of the statutory
law and providing for an appropriation." L. 1974, c. 119.
Chapter 119 contains fifty-six sections, all of which created or
modified portions of Title 9.
Chapter 119 addressed many procedural aspects associated
with abuse or neglect litigation, including the issuing of
summonses in abuse-or-neglect cases, id. at § 17 (N.J.S.A. 9:6-
8.37); sustaining or dismissing an abuse or neglect case, id. at
§ 30 (N.J.S.A. 9:6-8.50); and identifying who may originate an
abuse-or-neglect proceeding, id. at § 14 (N.J.S.A. 9:6-8.34).
Chapter 119 made no reference whatsoever to Title 30
guardianship proceedings.
Over the years, when overhauling or modifying provisions
within Title 9 or Title 30, the Legislature has frequently
(albeit not exclusively) dealt with those Titles separately.
For example, in 1962, lawmakers reorganized many State agencies
to fit under the administrative umbrella of the Division of
Welfare, and outlined what functions the Bureau of Children's
Services would administer. L. 1962, c. 197. Title 9 was only
mentioned in that 1962 law incidentally, indicating how a
finding of abuse or neglect would impact the State's ability to
32 A-2565-15T2
file a complaint for termination of a parent's rights under
Title 30. Id. at § 15.
Similarly, when the Legislature redefined child abuse
standards in Title 9, L. 1987, c. 341, and passed the
Comprehensive Child Abuse Prevention and Treatment Act, L. 1997,
c. 175, it did so with scant or minimal reference to Title 30.
When the four-prong "best interests" standard for termination
was codified in L. 1991, c. 275, the provision was codified only
in Title 30, with no cross-reference to Title 9.
We are mindful that, more recently since 1999, changes in
our child welfare laws have tended to involve simultaneous
revisions of portions of both Title 9 and Title 30. See, e.g.,
L. 1999, c. 53; L. 2004, c. 130; L. 2012, c. 16. Notably,
however, when the Legislature amended N.J.S.A. 9:6-8.46(a) in
2005 by L. 2005, c. 269, § 2, to expand that evidentiary
provision's applicability to administrative hearings in which a
parent or other caretaker can be charged with abuse or neglect,
the Legislature did nothing to expand the scope of those
exceptions to Title 30 termination proceedings. Instead, the
Legislature confined the 2005 expansion solely to administrative
hearings.
33 A-2565-15T2
C.
As we have already highlighted, N.J.S.A. 9:6-8.46(a)
specifies that it applies only to "any hearing under this act."
(Emphasis added). The hearings provided under the 1974 law
include a hearing upon emergency removal of a child, L. 1974, c.
119, § 11 (codified at N.J.S.A. 9:6-8.31); a hearing upon
application to return a child that has been temporarily removed,
L. 1974, c. 119, § 12 (codified at N.J.S.A. 9:6-8.32); a fact-
finding hearing to determine whether a child was abused or
neglected, L. 1974, c. 119, §§ 24, 26 (codified at N.J.S.A. 9:6-
8.44, -8.46); and a dispositional hearing after which a court
may release the child to the custody of his parents, relative,
or other Division-approved caretaker, issue protective orders,
and order therapeutic services, L. 1974, c. 119, §§ 25, 31
(codified at N.J.S.A. 9:6-8.45, -8.51).
The stated legislative objectives of L. 1974, c. 119,
reflect that the law was intended to address abuse or neglect by
providing for the emergency or temporary removal of children.
Senate Law, Public Safety & Defense Comm. Statement to S. 1217
(May 2, 1974). The Committee Statement described the fact-
finding and dispositional hearings provided under the law.
Notably, the Committee Statement does not mention permanent
removal of children or the termination of parental rights.
34 A-2565-15T2
We further agree with defendant and amicus that it would be
illogical to read N.J.S.A. 9:6-8.46(a) as being applicable to
Title 30 guardianship proceedings, in light of the clause within
the subsection specifically disallowing uncorroborated
statements of abuse from being "sufficient to make a fact
finding of abuse or neglect." N.J.S.A. 9:6-8.46(a)(1) (emphasis
added). If, as respondents maintain, the hearsay exception in
the subsection generally extended to termination proceedings
under Title 30, the language in subsection (a)(1) would
seemingly allow uncorroborated statements to be used to
establish that termination is in the best interests of a child
pursuant to N.J.S.A. 30:4C-15.1(a), while prohibiting the use of
such uncorroborated statements to establish abuse or neglect in
a Title 9 proceeding. Such an illogical construction should not
be countenanced. See State v. Morrison, 227 N.J. 295, 308
(2016) (instructing that a statute must be construed sensibly,
and rejecting an interpretation "that leads to an absurd result
[that] is distinctly at odds with the public-policy objectives
of a statutory scheme").
D.
Apart from their unpersuasive textual and structural
arguments, respondents point to passages within a few prior
cases that they contend support, at least by inference, its
35 A-2565-15T2
expansive interpretation of the hearsay exception in N.J.S.A.
9:6-8.46(a)(4). For instance, respondents rely on Guardianship
of D.M.H., 309 N.J. Super. 179, 202 (App. Div. 1998), in support
of their claim that "it has been specifically held that Titles 9
and 30 should be read in pari materia." However, our decision
in D.M.H. was reversed by the Supreme Court. See In re
Guardianship of D.M.H., 161 N.J. 365, 394 (1999). Respondents
rely on one sentence that was dicta in our decision in D.M.H.,
which cited in turn the Supreme Court's decision in In re
Adoption of a Child by D.M.H., 135 N.J. 473, 481, cert. denied
sub nom, Hollingshead v. Hoxworth, 513 U.S. 967, 115 S. Ct. 433,
130 L. Ed. 2d 345 (1994).
In Adoption by D.M.H., the Supreme Court discussed the
standards for terminating parental rights under the private
adoption statutes, N.J.S.A. 9:3-48(c)(1) and N.J.S.A. 9:3-46(a).
Ibid. Citing In re Adoption of Children by L.A.S., 134 N.J.
127, 134-35 (1993), the Court commented that the concept of
"'[a]bandonment' in both private and public adoptions requires a
state of mind that indicates the willful or purposeful
repudiation of parental responsibilities." Adoption by D.M.H.,
supra, 135 N.J. at 481.
In its earlier opinion in L.A.S., supra, the Court, again
in dicta, compared the standards for terminating parental rights
36 A-2565-15T2
in Title 30 with the standards in the Title 9 private adoption
statutes and observed that "despite the differences in the
respective statutory descriptions of the conditions required to
terminate parental rights, the substantive standards governing
both public and private termination proceedings are roughly
equivalent to one another." 134 N.J. at 134 (emphasis added).
Notwithstanding this substantive overlap, the Supreme Court
did not hold in Adoption by D.M.H., nor in L.A.S., that Title 9
and Title 30 must be read, for all purposes, in pari materia.
Indeed, no reported case has made such a sweeping, all-inclusive
determination.
The Division further relies on New Jersey Division of Youth
and Family Services v. F.H., 389 N.J. Super. 576, 609 (App.
Div.), certif. denied, 192 N.J. 68 (2007), in support of its
argument that N.J.S.A. 9:6-8.46 has been repeatedly applied in
Title 30 guardianship trials. In F.H., this court considered
whether the Division had proven by clear and convincing evidence
in a Title 30 case that the parental rights of F.H. and A.H. as
to their three children should be terminated. Id. at 584. We
held that the record supported a conclusion that the parents had
harmed the middle child but not the other two children. Id. at
612-13. As a passing observation, we "recognize[d], however,
that under N.J.S.A. 9:6-8.46[(a)(1)], 'proof of the abuse or
37 A-2565-15T2
neglect of one child shall be admissible evidence on the issue
of the abuse or neglect of any other child of . . . the
parent[.]'" Id. at 613.
We did not analyze in F.H. whether Title 9's special
evidence provisions had been appropriately applied in a Title 30
guardianship case. Indeed, after citing the Title 9 evidence
statute, we went on to say that "as a part of its burden of
proof, the State must still demonstrate by a preponderance of
the competent, material and relevant evidence (N.J.S.A. 9:6-
8.46(b)) the probability of present or future harm." Id. at 614
(quoting N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J.
Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426(2005)).
Viewed in proper context, our focus in F.H. was to
emphasize that the burden of proof must be satisfied, regardless
of the admission of evidence concerning abuse of a sibling.
Based on the facts in that record, we concluded that the
Division had not proven the first prong of N.J.S.A. 30:4C-
15.1(a) as to the middle child's two siblings. Id. at 616-17.
We do not regard the passages in F.H. cited by the Division as
authoritatively or conclusively establishing that N.J.S.A. 9:6-
8.46(a)(4) is generally applicable to Title 30 termination
38 A-2565-15T2
cases. Importantly, that specific legal question was not before
the F.H. panel, as it now is here.
Further, although F.H. quoted from the Title 9 statute,
there is case law independently suggesting that competent proof
of the abuse or neglect of a sibling is admissible in
considering harm to a child in a Title 30 proceeding. See J. v.
M., 157 N.J. Super. 478, 493 (App. Div. 1978) (finding "[a]ll
any court can rely upon in determining whether to sever parental
rights is the parents' past course of conduct, whether to the
child in question or to other children in their care"), certif.
denied, 77 N.J. 490 (1978). Reliance on N.J.S.A. 9:6-8.46(a)(1)
therefore was not necessary in F.H. for recognizing that
appropriate evidence of abuse or neglect of a sibling may be
admissible in a guardianship trial.
The Division also cites to New Jersey Division of Youth and
Family Services v. A.R.G., 179 N.J. 264, 275-78 (2004), and New
Jersey Division of Youth and Family Services v. N.S., 412 N.J.
Super. 593, 624, 626-27 (App. Div. 2010), as indicative that our
courts at times have given collateral estoppel effect to Title 9
findings in Title 30 cases where the findings were based on
hearsay statements of abused children. In A.R.G., the Supreme
Court specifically considered whether aggravated circumstances
existed, such that the Division was excused under N.J.S.A.
39 A-2565-15T2
30:4C-11.3(a) from providing reasonable efforts towards
reunification. 179 N.J. at 270. The trial court had found by
clear and convincing evidence that the child "had been subjected
to aggravated circumstances of abuse and cruelty" based on
photographs of the child's injuries, medical records, the
caseworker's testimony, and the Division's report. Id. at 275.
On appeal to the Supreme Court in A.R.G., the defendant
argued that he had been denied due process and that the evidence
was insufficient to support the trial court's findings, in part,
because the testimony of the caseworker relied on hearsay. Id.
at 280. The Division countered that the testimony of the
caseworker was admissible because it was based on her first-hand
knowledge of the child's injuries, and because it accorded with
N.J.S.A. 9:6-8.46(a)(4) and Rule 5:12-4(d).11 Id. at 281. The
Court did not address these arguments in its decision.
11
Rule 5:12-4(d) provides that the Division may submit into
evidence, pursuant to the general business record hearsay
exception, N.J.R.E. 803(c)(6), and N.J.R.E. 801(d) (defining a
"business" for purposes of the hearsay rules), "reports by
[Division] staff personnel or professional consultants." That
Court Rule, which is not at issue in this appeal, does not
govern the analysis of the statutory provisions within Title 9
and Title 30, nor does it provide any insight into the
Legislature's intent. In any event, hearsay statements from a
child embedded in such reports would need an independent pathway
for admission to be considered for their truth. See N.J.R.E.
805 (limiting the admissibility of hearsay within hearsay); see
also N.J. Div. of Child Protection & Permanency v. N.T., 445
N.J. Super. 478, 497 (App. Div. 2016).
40 A-2565-15T2
Instead, it focused on developing a standard that could be used
to find "aggravated circumstances" under N.J.S.A. 30:4C-11.3.
Id. at 282-85. After setting forth the standard to be used, it
remanded the matter to the trial court for a de novo review of
the issue of "aggravated circumstances." Id. at 285.
The Division suggests that the opinion in A.R.G. signifies
that decisions made by a Title 9 court, on a finding of clear
and convincing evidence that includes hearsay, can satisfy
elements of the best interests test prescribed in N.J.S.A.
30:4C-15.1(a). However, the Supreme Court in A.R.G. did not so
hold and did not even consider the question.
Yet another case relied on by the Division, N.S., supra,
412 N.J. Super. at 606, is likewise not dispositive. In N.S.,
the defendants challenged a finding of abuse and neglect
rendered in a Title 9 proceeding. Despite the Division's claim
that the trial court had admitted the hearsay statements of a
child and found abuse by clear and convincing evidence, we
recognized that the Division's assigned burden of proof in a
Title 9 case was only by a preponderance of the evidence. Id.
at 615. The question of the admissibility of hearsay was not
before this court. Rather, the defendants had objected to the
statements of the child on the basis that "they were the product
41 A-2565-15T2
of highly suggestive and improper questioning techniques." Id.
at 621 (internal quotations omitted).
The Division also has cited to us a handful of unreported
opinions, in which various panels of this court have presumed or
stated in passing that the special evidentiary provisions in
N.J.S.A. 9:6-8.46(a)(4) apply in Title 30 termination trials.
We place no reliance on those unpublished opinions as
authoritative. See R. 1:36-3. According to the Division, these
unreported opinions are at least suggestive of a custom to treat
Title 9 and Title 30 evidentiary principles interchangeably.
Nevertheless, regardless of such claims of custom, we are
obligated to apply and enforce our statutes in accordance with
their plain terms. Those plain terms, as we have shown, mandate
that N.J.S.A. 9:6-8.46(a)(4) be confined to Title 9 proceedings
rather than Title 30 guardianship trials.
E.
The Supreme Court has long noted important differences
between Title 9 and 30 proceedings. As the Court observed in
New Jersey Division of Youth and Family Services v. R.D.:
Title Nine proceedings differ from Title
Thirty proceedings in three fundamental
respects: Title Nine proceedings are
intended to be started and completed
quickly, while Title Thirty proceedings
stress a more deliberative and comprehensive
approach; Title Nine proceedings are geared
towards an interim form of relief – removal
42 A-2565-15T2
of the child from immediate harm, with
permanent placement to be considered at a
later date – while the relief sought in
Title Thirty proceedings is the permanent
termination of parental rights that will
allow the child to become eligible for
adoption by another; and, most importantly,
the differing standards of proof applicable
to those disparate proceedings highlight a
fundamental difference between the two.
[207 N.J. 88, 118 (2011).]
Although it did not directly address the discrete issue now
before us, the Supreme Court's opinion in R.D. provides a
specific indication that the special evidentiary provisions that
apply in Title 9 proceedings are not impliedly applicable in
Title 30 proceedings. Id. at 114. As the Court observed, there
are differences between those proceedings "in respect of the
standards for admissibility of evidence." Ibid. The Court went
on to cite the subsections within N.J.S.A. 9:6-8.46 as
exemplifying those differences. Although the Court used the
adjective "minor" to describe those differences, the instructive
point for our present purposes is that the Court in R.D.
acknowledged the existence of differences between the
evidentiary provisions that apply in Title 9 proceedings and
those that govern Title 30 termination proceedings. Ibid.Moreover, there are markedly different burdens of proof
respectively imposed by the Legislature for Title 30 termination
proceedings, as opposed to abuse or neglect proceedings under
43 A-2565-15T2
Title 9. The Division's burden of proof in Title 9 abuse or
neglect cases, whether litigated in the Family Part under the FN
docket or in administrative proceedings, is the mere
preponderance of the evidence. Id. at 96. By contrast, the
Division bears a much heavier burden of proof in guardianship
trials when seeking the termination of a parent's rights, having
the duty to establish all four statutory criteria by clear and
convincing evidence. N.J. Div. of Youth & Family Servs. v.
E.P., 196 N.J. 88, 103 (2008).
Because the termination of a parent's right to raise his or
her child is permanent under the Title 30 statute, the
Legislature had a logical basis to impose a more stringent
burden on the Division in such termination cases. By
comparison, a parent or guardian who is found in a Title 9
proceeding to have engaged in an act of abuse or neglect will
not necessarily have their rights terminated, but will be placed
on the Child Abuse Registry. N.J. Div. of Child Protection &
Permanency v. V.E., 448 N.J. Super. 374, 391-92 (App. Div.
2017). Although that registry consequence is also a serious
one, it does not equate to a parent's loss of a child forever.
Accordingly, it was entirely logical for the Legislature to
confine the special evidentiary rules in N.J.S.A. 9:6-8.46(a),
which ease the Division's burden, to Title 9 cases, and to
44 A-2565-15T2
require the Division to adduce more rigorous and persuasive
proof in a Title 30 termination trial.
Of course, the Legislature has the prerogative to amend
Title 30 and incorporate some or all of the special evidentiary
exceptions from Title 9 into that statute, if it so chooses.
The Legislature is best positioned to weigh the legitimate
policy interests in shielding children from stressful court
appearances against the likewise legitimate interests of
defendants in assuring that their parental rights are not
terminated in an unfair manner based upon unreliable hearsay.
We leave that policy choice to our elected officials. It is not
our task or role to provide an advisory opinion about the merits
of such hypothetical legislation. G.H. v. Twp. of Galloway, 199
N.J. 135, 136 (2009).
Nor do we need to reach here the constitutional issues of
due process posed by amicus. See Randolph Twp. Ctr., L.P. v.
Cnty. of Morris, 186 N.J. 78, 80 (2006) (stating the well-known
principle that courts "should not reach a constitutional
question unless its resolution is imperative to the disposition
of litigation").
F.
As an alternative legal basis for the admission of the
minor females' hearsay allegations of sexual abuse, the Division
45 A-2565-15T2
argues that, under N.J.R.E. 703, the trial court properly
considered the substance of those allegations, insofar they were
"facts or data" noted by Dr. Katz in his own expert testimony.
We disagree.
N.J.R.E. 703 does allow a testifying expert to base his or
her opinions on "facts or data" that are either "perceived by or
made known to the expert at or before the hearing" or trial.
Ibid. Rule 703 adds that if the facts or data are "of a type
reasonably relied upon by experts in [the expert's] particular
field in forming opinions or inferences upon the subject," such
information "need not be admissible in evidence." Ibid.; see,
e.g., In re Civil Commitment of J.M.H., 367 N.J. Super. 599, 612
(App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
An important limitation of this Rule 703 exception is that,
if the "facts or data" relied upon by the expert are not
admissible, then the court or trier of fact may only consider
those facts or data to the extent it is helpful in understanding
the expert's opinions or assessing their credibility. The non-
admitted facts or data, which are often hearsay, may not be
considered for their truth as substantive proof. See, e.g.,
Agha v. Feiner, 198 N.J. 50, 63 (2009); McLean v. Liberty Health
Sys., 430 N.J. Super. 156, 173-74 (App. Div. 2013).
46 A-2565-15T2
The expert's testimony may not be used as a "conduit" to
establish facts that are not independently supported by
competent evidence. Agha, supra, 198 N.J. at 63; James v. Ruiz,
440 N.J. Super. 45, 66 (App. Div. 2015). If an expert opinion
is based on a fact not in evidence, "its persuasiveness is
greatly undermined." Goyden v. State Judiciary, 256 N.J. Super.
438, 455 (App. Div. 1991), aff'd o.b., 128 N.J. 54 (1992).
Indeed, we have admonished the Division and trial judges in
several reported cases to refrain from basing determinations in
child welfare cases upon inadmissible hearsay or other
incompetent proof. See, e.g., N.J. Div. of Child Protection &
Permanency v. S.G., 448 N.J. Super. 135, 146-47 (App. Div. 2016)
(vacating the finding of abuse-or-neglect because the trial
court relied entirely on Division reports to establish the
defendant's marijuana use and should have instead heard some
witness testimony); N.T., supra, 445 N.J. Super. at 501
(disallowing the hearsay opinion of a psychologist about a
complex diagnosis of a child's PTSD, where the diagnosis was not
shown to be trustworthy); N.J. Div. of Youth & Family Servs. v.
B.M., 413 N.J. Super. 118, 128 (App. Div. 2010) (disallowing
reliance on information from a hearsay source about a child's
fetal alcohol syndrome in a Title 30 termination proceeding).
47 A-2565-15T2
Here, Dr. Katz had no personal knowledge of the truth of
the girls' sexual abuse allegations. As we have noted, Jenny
and Sandy did not testify at the guardianship trial. Nor did
Dr. Katz cite to any objective or clinical evidence to
corroborate the abuse. In fact, at least at one point, Jenny
recanted her allegations. Moreover, as Dr. Katz himself noted,
there were inconsistencies within the hearsay allegations.
For these many reasons, we conclude it was error for the
trial court to admit and rely on those inadmissible hearsay
allegations of sexual abuse in this case.12 We do, however,
offer one important caveat to that conclusion, as it relates to
Sandy's specific allegations relative to defendant's involvement
in her abortion.
As we noted in our factual recitation in Part I, supra, the
Division moved into evidence a certified copy of Sandy's medical
records from her abortion procedure. Despite defense counsel's
strenuous objection to other hearsay items of proof, defendant
did not oppose the admission of the medical records. Those
12
We note there is no contention by the Division that the girls'
allegations were admissible under the "tender years" hearsay
exception, N.J.R.E. 803(c)(27), which requires, among other
things, a judicial finding of trustworthiness after certain
special procedures and a Rule 104 hearing are followed. State
v. P.S., 202 N.J. 237, 249 (2010). Moreover, Sandy was over the
age of twelve and thus not of "tender years" within the terms of
that provision.
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records do not establish that defendant had sexual relations
with Sandy, who apparently told the medical staff that she had
been impregnated by her boyfriend.
In any event, the medical records are probative and
competent evidence of certain facts, i.e., that defendant took
Sandy to the office, that he purported to authorize the
procedure as her parent or guardian, and that the procedure was
an abortion. Such evidence is particularly relevant to rebut
defendant's claims to the contrary. It was also underscored in
Dr. Katz's trial testimony as inappropriate behavior indicative
of defendant's unsuitability as a parent. To that limited
extent, the trial court was entitled to consider the
unchallenged medical records concerning the abortion and the
expert's associated testimony. Any claim of error in this
regard by defendant is rejected as invited or waived. See N.J.
Div. of Youth & Family Servs. v. M.C., III, 201 N.J. 328, 339-42
(2010). There is no fundamental injustice in upholding the
limited use of those particular records.
III.
Having concluded that the trial court erred in admitting
the portions of the trial exhibits and testimony relating to
Jenny's and Sandy's hearsay allegations of defendant's sexual
wrongdoing, we must now consider the impact of that mistake.
49 A-2565-15T2
Specifically, we must evaluate whether the error was, as
respondents argue, merely harmless, see State v. Macon, 57 N.J.
325, 340 (1971), or whether it was sufficiently prejudicial to
have been "clearly capable of producing an unjust result." R.
2:10-2.
Defendant's long-standing failure to comply with court
orders and services provided by the Division and to maintain a
relationship with Calvin despite supervised visitation offered
to him reflect serious deficiencies on his part. Even so, we
have concerns about the extent that the hearsay allegations of
sexual abuse affected the trial court's overall analysis of this
case with respect to prongs one, two, and four. As the trial
judge explicitly stated in her written decision, the court could
"not ignore" the minors' allegations. The judge accepted at
face value their reported hearsay contentions that defendant had
engaged in a "consistent pattern of egregious acts of abuse or
neglect."
If what the minors had alleged about defendant's utterly
deplorable sexual conduct is indeed true, the judge's comments
are surely justified. Such outrageous conduct, if proven,
warrants severe sanctions and the utmost protection against its
reoccurrence. Yet, despite the severity of the allegations of
sexual wrongdoing, the State did not criminally prosecute
50 A-2565-15T2
defendant, perhaps because of the recantation and the
inconsistencies within the girls' narratives. Moreover, the
Division chose not to attempt to prove the sexual abuse
allegations at a Title 9 fact-finding hearing, despite having
initially filed a complaint against defendant under Title 9.
The fundamental problem for our present appellate review is
that the girls' allegations of abuse were not supported by any
competent proof in this record under the evidentiary rules that
govern Title 30 proceedings. Indeed, much of Dr. Katz's opinion
was predicated on an assumption that "if" the girls' allegations
were true, then certain inferences and protective measures were
warranted. Consequently, the unproven allegations of sexual
abuse must be disregarded.
Our concerns about such spillover effects do not extend to
the trial judge's findings with respect to prong three of the
statute. The record abundantly supports the judge's
determination that the Division made reasonable efforts to
provide services to defendant and Calvin. Defendant simply
failed to take advantage of those services. Although we are
mindful that the sexual therapy offered to him might be
inappropriate if the minors' hearsay allegations of sexual abuse
are untrue, that is no excuse for defendant's failures to comply
with other services such as parenting classes and visitation.
51 A-2565-15T2
Moreover, the Division reasonably ruled out T.C. as an
alternative caretaker in light of her own deficiencies, and, as
the trial judge found, no suitable relatives of Calvin were
identified.13
Given these considerations, we conclude that a remand to
the trial judge is appropriate to afford the judge an
opportunity to reconsider her ruling in light of the guidance
provided in this opinion. Specifically, the judge should
determine whether, if the hearsay allegations of sexual abuse
are disregarded, she would still conclude that the Division met
its burden of proving statutory prongs one, two, and four by
clear and convincing evidence. We anticipate that the judge is
perfectly capable of objectively making that assessment.
Despite having literally said (perhaps as a figure of speech)
that she could not "ignore" the allegations, we are respectfully
now asking her to do so. In remanding for that purpose, we bear
in mind the judge's unique perspective as the fact-finder who
presided over this marathon ten-day trial that spanned nearly a
13
In this record, we detect no abuse of discretion or
prejudicial error by the trial judge in disallowing testimony by
T.C. in defendant's case, since, as we have noted, the Division
presented no competent proof that sexual abuse actually occurred
in T.C.'s residence. However, on remand, the court shall have
the discretion to reconsider allowing testimony from T.C. on
other subjects, including the current status of her household.
52 A-2565-15T2
whole year. We discern no compelling reason to remand this
matter to another judge.
On remand, the trial judge shall have the discretion to
permit updated or other additional relevant proofs from the
parties, including updated expert opinions. Such discretion,
however, shall be exercised subject to the condition that the
Division may not attempt to re-prove the truth of the girls'
hearsay allegations by other means. It would be fundamentally
unfair to defendant to allow the Division a second opportunity
to prove in a reopened proceeding what it failed to prove by
competent evidence at the original trial. The trial court shall
conduct a case management conference within thirty days of this
opinion to plan with counsel the remand proceedings.
All other points raised by defendant lack sufficient merit
to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed as to the trial court's findings under prong three
of N.J.S.A. 30:4C-15.1(a); vacated and remanded as to prongs
one, two, and four. We do not retain jurisdiction.
53 A-2565-15T2