New Jersey Division of Child Protection and Permanency Vs. , 441 N.J. Super. 585 ( 2015 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2114-12T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant/ August 11, 2015
Cross-Respondent,
APPELLATE DIVISION
v.
I.B.,
Defendant-Respondent/
Cross-Appellant,
and
A.E.,
Defendant-Respondent.
_________________________________
IN THE MATTER OF R.B., a Minor.
____________________________________________
Argued October 7, 2014 – Decided August 11, 2015
Before Judges Fisher, Nugent1 and Accurso.
1
Judge Nugent did not participate in oral argument. The
parties, however, have consented to his participation in the
decision. R. 2:13-2(b).
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex
County, Docket No. FN-07-460-12.
Michelle Mikelberg, Deputy Attorney General,
argued the cause for appellant/cross-
respondent (John J. Hoffman, Acting Attorney
General, attorney; Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Ms.
Mikelberg, on the briefs).
Stephen S. Berowitz argued the cause for
respondent/cross-appellant I.B. (Shaievitz &
Berowitz, attorneys; Mr. Berowitz, on the
briefs).
Respondent A.E. joins in the brief of
appellant NJDCCP.
Todd Wilson, Designated Counsel, argued the
cause for minor (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Mr.
Wilson, on the brief).
The opinion of the court was delivered by
ACCURSO, J.A.D.
The central issue in this Title Nine trial was whether a
licensed psychologist retained by the Division of Child
Protection and Permanency to evaluate a five-year old could
offer his opinion on the nature of her reported symptoms and his
diagnosis to corroborate the child's hearsay report that her
father made her touch his genitals. The trial judge heard the
testimony pursuant to N.J.R.E. 104 but determined to exclude it
based on a line of criminal cases starting with State v. J.Q.,
130 N.J. 554 (1993), in which the Supreme Court rejected the use
2 A-2114-12T2
of Child Sexual Abuse Accommodation Syndrome evidence as
substantive proof of child abuse.
The State's expert in this case, however, did not offer an
opinion on Child Sexual Abuse Accommodation Syndrome. He
testified that the child, whom he evaluated within a month of
the alleged abuse, suffered from Adjustment Disorder with mixed
disturbance of emotions and conduct and concluded her
"statements and presentation are consistent with a child who has
experienced sexual abuse." We reverse and remand for the judge
to consider the testimony offered by the Division's expert. We
hold the psychological opinion evidence offered here is
admissible to corroborate the child's allegation of abuse
subject, of course, to whatever weight the judge deems
appropriate to accord the testimony.
In rendering his opinion from the bench, the trial judge
stated: "if this is not the hardest case that I have had to
decide, it is the closest that I have ever had to come."
Because we are remanding for further consideration of the
evidence, we only briefly describe the allegations and the
thrust of the father's defense.
3 A-2114-12T2
The Division claimed that defendant father I.B. committed
an act of sexual abuse against his five-year-old daughter, Rose,2
by calling her into the bathroom at their home and telling her
to touch his penis. Some days later, Rose spontaneously
revealed this incident to her mother, A.E.,3 a medical doctor who
had trained as a gynecologist in the family's native Sudan.
Rose's mother initially discounted the allegation. She assumed
the child may have accidently seen her father naked and been
naturally curious, given her age, prompting the child's
conversation with her. When she asked Rose about it sometime
later, however, the child got upset and said she didn't want to
talk about it because it made her stomach hurt. After several
more such conversations in which the child shared additional
details, including that her father had washed "the glue" from
her hands afterward, A.E. sought a restraining order against her
husband in which she revealed the child's allegation. Court
personnel advised A.E. that she should report the incident to
the Division.
We note here that both parents acknowledged marital discord
pre-dating the allegation of sexual abuse. Defendant
2
We use a fictitious name to protect the child's identity.
3
Although A.E. was named as a defendant in the action, the
Division did not pursue a claim against her. We refer to I.B.
as defendant in this opinion.
4 A-2114-12T2
categorically denied the child's account. He claimed his wife
had coached their daughter to make false allegations against
him.
Following an initial interview by a Division caseworker,
Rose participated in a videotaped interview conducted by a
certified forensic interviewer at Wynona's House Child Advocacy
Center. Rose recounted the allegation to the interviewer,
providing some specific details such as the television program
she had been watching when her father called her into the
bathroom as well as the particular towel he had wrapped around
him. Using anatomically correct dolls to demonstrate what had
occurred, the five-year old placed the female doll's hand on the
male doll's penis and moved the hand. She reported that her
father was silent as he "finished peeing." At the end of the
interview, Rose spontaneously asked the interviewer whether
"touching butts [the word she used to describe the vagina, penis
and buttocks on anatomical drawings] is [a] good thing or not a
good thing?"
Following the interview, the Division filed its complaint
and referred Rose to the Metropolitan Regional Child Abuse
Diagnostic and Treatment Center. Staff psychologist Justin
Misurell, Ph.D., conducted a psychosocial evaluation of the
child based on the videotape of the forensic interview, Division
5 A-2114-12T2
records, and a clinical interview of Rose. In that interview,
Rose confirmed the statements she made during the forensic
interview and "reported that she frequently experiences
nightmares about 'bad things like getting locked in the
bathroom.'" She also reported that her parents used to often
argue, that she thinks frequently about those incidents, and
that they make her feel sad.
Misurell diagnosed Rose as suffering from Adjustment
Disorder with mixed disturbance of emotions and conduct and
concluded her "statements and presentation are consistent with a
child who has experienced sexual abuse." He found she "has
exhibited trauma related symptoms" including intrusive thoughts
about the incident, nightmares, and has engaged in active
attempts to avoid thinking about the abuse. Misurell attributed
Rose's symptoms to "her sexual abuse experience and exposure to
marital discord."
After hearing Misurell's testimony pursuant to N.J.R.E.
104, the judge determined to strike his opinion, ruling that the
expert would not be permitted to "express opinions as to the
psychological condition of the child for the purposes of showing
that the sexual assault has, in fact, occurred." Based on the
Court's opinion in J.Q. and our opinions in State v. Scherzer,
301 N.J. Super. 363 (App. Div.), certif. denied, 151 N.J. 466
6 A-2114-12T2
(1997) and N.J. Div. of Youth & Family Servs. v. Z.P.R., 351
N.J. Super. 427 (App. Div. 2002), the court determined it could
not consider Misurell's opinion as "substantive evidence that
the child was abused." The judge did, however, admit the
statements the child made to Misurell during the evaluation,
including her report of nightmares.
Although finding the case an extraordinarily close one, the
judge ultimately determined the Division lacked any
corroboration for the child's report of sexual abuse. The judge
specifically rejected defendant's claims that A.E. had coached
Rose into lying about the incident, stating that "after
observing [A.E.] throughout the course of the trial and hearing
her testimony, it is apparent that these assertions are without
merit." Notwithstanding, the court noted inconsistencies in
A.E.'s testimony regarding the timeline of events and found
"there was really no development during the course of this case
of any sort of corroboration as to the date, time, and place
that the child says that I was in the bathroom with my father."4
The judge further found no physical evidence or precocious
4
There was no dispute that during the timeframe in question,
Rose was in her father's sole care for at least two nights a
week while her mother attended graduate school classes. Rose,
however, initially reported that her mother was in the living
room when the assault allegedly occurred. She later said her
mother was at school and still later that she was in the
kitchen.
7 A-2114-12T2
sexual knowledge. Although acknowledging the child's report of
nightmares, the judge found they did "not appear . . . to be
necessarily connected because the child was experiencing turmoil
within the family between the father and the mother."
Actions filed by the Division alleging abuse and neglect of
children are governed by statute. N.J.S.A. 9:6-8.21 to -8.73.
An abused or neglected child is defined, among other ways, as
one under the age of eighteen whose parent "commits or allows to
be committed an act of sexual abuse against the child."
N.J.S.A. 9:6-8.21c(3). The Division "must prove that the child
is 'abused or neglected' by a preponderance of the evidence, and
only through the admission of 'competent, material and relevant
evidence.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205
N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46b). The statute
provides that "previous statements made by the child relating to
any allegations of abuse or neglect shall be admissible in
evidence; provided, however, that no such statement, if
uncorroborated, shall be sufficient to make a fact finding of
abuse or neglect." N.J.S.A. 9:6-8.46a(4).
Although the most effective types of corroborative evidence
would obviously be eyewitness testimony, an admission by the
accused, or medical or scientific testimony documenting abuse,
we have acknowledged that such evidence in sexual abuse cases is
8 A-2114-12T2
rare. Z.P.R., supra, 351 N.J. Super. at 436. In Z.P.R. we
followed the reasoning of other courts holding that the
corroboration requirement must reasonably be construed to also
include indirect evidence of abuse, including, for example, "a
child victim's precocious knowledge of sexual activity, a semen
stain on a child's blanket, a child's nightmares and
psychological evidence." Ibid. (quoting State v. Swan, 790 P.2d
610, 615-16 (Wash. 1990), cert. denied, 498 U.S. 1046, 111 S.
Ct. 752, 112 L. Ed. 2d 772 (1991)). We held the "corroborative
evidence need not relate directly to the alleged abuser, it need
only provide support for the out-of-court statements." Ibid.
Here, the trial judge struck psychological evidence of
emotional effects that are routinely admitted in Title Nine
cases.5 Such evidence is admitted because judges find it will
assist them "to understand the evidence or to determine a fact
in issue." N.J.R.E. 702; Z.P.R., supra, 351 N.J. Super. at 439.
It appears that the trial judge, who conscientiously struggled
with the issue of corroboration in this case, disallowed the
expert's opinion, not because he thought the testimony would not
be helpful in understanding the child's symptoms, but because he
5
Indeed, the judge acknowledged admitting such testimony in
other cases, at least one of which was affirmed by this court.
9 A-2114-12T2
thought the evidence barred by precedent. We do not agree that
the case law would bar the expert's opinion here.
The Supreme Court in J.Q. barred the use of Child Sexual
Abuse Accommodation Syndrome to establish guilt because the
syndrome was never intended as a diagnostic device and does not
detect sexual abuse. 130 N.J. at 578-79. Instead, it assumes
the presence of abuse and explains the child's reactions to it.
Id. at 579. The syndrome was only ever intended to help explain
why many sexually abused children delay reporting their abuse or
recant their allegations. Ibid. Because it is not probative of
sexual abuse, the Court limited its use in accordance with its
intended purpose, that is as rehabilitative evidence to help
"dispel preconceived, but not necessarily valid, conceptions
jurors may have concerning the likelihood of the child's
truthfulness as a result of her delay in having disclosed the
abuse or sought help." State v. W.B., 205 N.J. 588, 610 (2011)
(quoting State v. P.H., 178 N.J. 378, 395 (2004)).
Because the Court in J.Q., 130 N.J. at 580, analogized its
ruling on the admissibility of Child Sexual Abuse Accommodation
Syndrome to the approach adopted in other jurisdictions to
evidence of Rape Trauma Syndrome, a syndrome that purports "to
dispel such common myths as that victims immediately report a
rape or that all victims display an emotional demeanor after an
10 A-2114-12T2
attack," we held in Scherzer, supra, 301 N.J. Super. at 399,
409, that it was similarly error for a court to allow an expert
to testify in a criminal case that the victim suffered from Rape
Trauma Syndrome.
Neither Child Sexual Abuse Accommodation Syndrome nor Rape
Trauma Syndrome played any part in this case. Misurell
diagnosed Rose with Adjustment Disorder with mixed disturbance
of emotions and conduct. He explained the reason he diagnosed
Adjustment Disorder and not Post-Traumatic Stress Disorder
(PTSD) was because he evaluated Rose within a month of her
allegation of abuse, thus her symptoms had not persisted long
enough to qualify her as suffering from PTSD. The trial judge
deemed the diagnosis significant because he read Scherzer to
include PTSD with Rape Trauma Syndrome as not probative of
sexual abuse.
The reference to PTSD in Scherzer is a fleeting one. The
objected-to testimony in that case involved Rape Trauma
Syndrome, not PTSD. The court reported that one of the experts
for the State acknowledged on cross-examination that Rape Trauma
Syndrome "would fall under the category of post-traumatic stress
disorder in the DSM III"6 (Diagnostic and Statistical Manual of
6
This does not appear to have been factually accurate. Although
PTSD was included in the DSM III, Rape Trauma Syndrome was not.
(continued)
11 A-2114-12T2
Mental Disorders III), a condition that another of the State's
experts did not find in the victim. Scherzer, supra, 301 N.J.
Super. at 400. The error we identified in Scherzer was that the
trial judge allowed the expert to testify that the victim
"exhibited the rape trauma syndrome"; our holding did not
address PTSD. Id. at 409.
More directly on point than Scherzer for this discussion is
State v. Hines, 303 N.J. Super. 311 (App. Div. 1997). In Hines,
a case decided shortly after Scherzer, Judge Skillman reviewed
the literature and surveyed the case law relating to the
admissibility of PTSD evidence. Finding that PTSD was well
recognized as a psychiatric disorder included in the DSM IV, and
that courts in other jurisdictions had held it possessed
sufficient scientific reliability to justify the admission of
expert testimony about the condition in appropriate
circumstances, we held it was error for the trial judge to have
precluded defendant from presenting testimony that she suffered
(continued)
American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders, 236-39 (3d ed. 1980). PTSD remains
a recognized diagnosis in the DSM V, but neither Rape Trauma
Syndrome nor Child Sexual Abuse Accommodation Syndrome is
included as a recognized diagnosis in the current version of the
Manual. American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders, 265-90 (5th ed. 2013).
12 A-2114-12T2
from the condition at the time she killed her father, whom she
alleged sexually abused her when she was a child. Id. at 313.
Specifically, applying the principles set forth in State v.
Kelly, 97 N.J. 178 (1984), for the admission of expert
testimony,7 we concluded the evidence was not objectionable and
that the expert's "proposed testimony regarding PTSD would have
been directly relevant to the issues of the honesty and
reasonableness of defendant's purported belief that she had to
resort to deadly force in order to repel the victim's assault"
and "also may have lent credibility to defendant's assertion
that the victim sexually abused her as a child, which was
7
The Court in Kelly indicated there are "three basic
requirements for the admission of expert testimony: (1) the
intended testimony must concern a subject matter that is beyond
the ken of the average juror; (2) the field testified to must be
at a state of the art such that an expert's testimony could be
sufficiently reliable; and (3) the witness must have sufficient
expertise to offer the intended testimony." 97 N.J. at 208.
Applying those principles, the Court held that expert testimony
regarding "battered woman's syndrome" was admissible to help
establish a claim of self-defense in a homicide case. Id. at
187. Specifically, the Court held defendant's expert "could
state . . . that defendant had the battered-woman's syndrome,
and could explain that syndrome in detail, relating its
characteristics to . . . the honesty and reasonableness of
defendant's belief" that she was in imminent danger of death or
serious injury at the time of the killing. Id. at 207. The
Court has since noted that "[a]lthough 'battered woman syndrome'
is not a listed psychological 'syndrome' in the [DSM], the
experience of being battered is mentioned as a potential
triggering event for [PTSD]. Some have referred to it as a
'sub-category' or 'subclass' of PTSD." State v. B.H., 183 N.J.
171, 183 (2005) (citations omitted).
13 A-2114-12T2
relevant to the reasonableness of her belief that he intended to
sexually assault her again." Hines, supra, 303 N.J. Super. at
324-25.
Accordingly, Hines stands for the proposition that PTSD
testimony is admissible in a criminal trial and can serve to
lend additional credibility to a defendant's allegations that
she was sexually abused by the victim and be probative of the
honesty and reasonableness of her belief that she had to resort
to deadly force to prevent him from raping her again. Id. at
326. The case provides sound precedent for the admission of
Misurell's opinion that Rose suffered from Adjustment Disorder,
described in the circumstances presented as a variant of PTSD,
and that her symptoms were consistent with a child who has
experienced sexual abuse. If accepted by the fact-finder, such
psychological testimony could serve as indirect corroboration of
the child's allegation of sexual abuse.8 See Z.P.R., 351 N.J.
Super. at 436.
8
The trial judge relied on Judge Weissbard's statement in Z.P.R.
that evidence of Child Sexual Abuse Accommodation Syndrome had
been held to be "admissible 'to explain secrecy, belated
disclosure and recantation by a child sex abuse victim' but not
'to prove that sex abuse, in fact, occurred,'" 351 N.J. Super.
at 438 (quoting State v. J.Q., 252 N.J. Super. 11, 43 (App. Div.
1991), aff'd, 130 N.J. 554 (1993)). As we have explained, the
Court limited the use of Child Sexual Abuse Accommodation
Syndrome in accord with its designed purpose. J.Q., supra, 130
N.J. at 579. The Court made clear it was not "rul[ing] out the
(continued)
14 A-2114-12T2
Hines is also instructive on another important point. In
acknowledging that PTSD possesses sufficient scientific
reliability to justify the admission of expert testimony about
the condition in appropriate circumstances, we noted "that the
admissibility of scientific evidence may turn not only on its
reliability but the purpose for which it is offered." Hines,
supra, 303 N.J. Super. at 318 n.1. In State v. Cavallo, 88 N.J.
508, 520 (1982), the Court noted that "[e]xpert evidence that
poses too great a danger of prejudice in some situations, and
for some purposes, may be admissible in other circumstances
(continued)
possibility that a qualified behavioral-science expert could
demonstrate a sufficiently reliable scientific opinion to aid a
jury in determining the ultimate issue that the abuse had
occurred." Id. at 565. Rather it provided guidance for the
admission of such evidence by suggesting criteria a trial court
may wish to consider in "evaluating the qualifications of a
witness who seeks to offer substantive evidence of sexual
abuse," clearly signaling its intent that the opinion not be
read to bar all use of psychological testimony as substantive
evidence of sexual abuse. Id. at 565-66. Indeed in Hines, we
noted the appropriate use of Child Sexual Abuse Accommodation
Syndrome for rehabilitative purposes and PTSD testimony as
substantive evidence in the same case. 303 N.J. Super. at 315-
18. In Z.P.R., we suggested on remand "in the interest of
having as complete a record as possible in this difficult and
serious matter," that the judge consider "permitting [the
State's expert] to evaluate [the allegedly abused and neglected
child] and, if appropriate in light of any supplemental reports
filed thereafter, to testify concerning his findings, as well as
about his opinions on the reliability of the in camera
interview." 351 N.J. Super. at 439-40. An evaluation of the
child would not have been necessary if the expert would be
confining his opinion to Child Sexual Abuse Accommodation
Syndrome.
15 A-2114-12T2
where it will be more helpful and less prejudicial." It
explained that "the usefulness of expert testimony depends in
part on the context in which it is offered. Testimony may be
more helpful than prejudicial in one context, because it is
being used for a limited purpose or because the factfinder knows
its limitations. Yet in different contexts the same evidence
might be excluded as unreliable." Id. at 526 n.8.
Our Family Part judges regularly qualify experts in
psychology and psychiatry and hear the opinion testimony those
experts offer in a variety of contexts. The Court has many
times noted the special expertise of Family Part judges and the
grave responsibilities the Legislature has reposed in them to
ensure the safety of children in our State. See Cesare v.
Cesare, 154 N.J. 394, 412-13 (1998). We are confident that the
judges hearing Title Nine cases regularly assess the sort of
testimony that was offered here and are more than capable of
evaluating the opinions of experts and understanding the
limitations of behavioral science testimony in a way untrained
jurors may not.
We expect the judges in these cases to rigorously evaluate
expert testimony offered to corroborate a child's allegation of
abuse. But so long as the proffered testimony meets the
requirements of N.J.R.E. 702 and Kelly, as the evidence offered
16 A-2114-12T2
here does,9 the questions should be directed to the weight and
not the admissibility of the testimony.10 See In re Yaccarino,
117 N.J. 175, 195-96 (1989).
In this case, the experienced and conscientious trial judge
expressed appropriate concern about the expert's ability to link
the child's symptoms, and especially her nightmares, to the
alleged sexual abuse as opposed to the admitted marital discord
between her parents. That is an important and legitimate area
of inquiry, which the psychologist should have been well
prepared to address. If the judge believed that the child
suffered from nightmares, as she told the expert and as her
mother testified, then their meaning and significance is a
question the judge was required to answer in determining whether
9
To the extent the trial judge rejected Misurell's testimony
based on any lack of training on the part of the psychologist or
the forensic interviewer, we conclude he erred. Misurell
testified he had conducted over 200 evaluations of child victims
of sexual abuse, received instruction on how to appropriately
interview sexually abused children and was able to identify
indications of "coaching." The forensic interview was conducted
by a certified forensic interviewer. Both professionals were
qualified to undertake their respective tasks. Moreover, the
judge specifically noted that he did not find any improprieties
in the interviewer's questioning of the child.
10
Evaluation of psychological or behavioral science testimony,
of course, requires distinguishing among different syndromes and
diagnoses and their respective scientific underpinnings. See
J.Q., supra, 130 N.J. at 566. We decline to follow our opinion
in State v. W.L., Sr., 292 N.J. Super. 100, 113-16 (App. Div.
1996) because we failed there to distinguish PTSD from Child
Sexual Abuse Accommodation Syndrome.
17 A-2114-12T2
they could serve to corroborate her allegation of sexual abuse.
See Z.P.R., supra, 351 N.J. Super. at 436.
Misurell testified that Rose's nightmares about "bad things
like getting locked in the bathroom" were a "trauma related
symptom" of the alleged sexual abuse. In referencing that
testimony in his opinion from the bench, the judge said:
My experience with dreams in life is that we
all can say, you know, what do you think
that dream was about? You know, what [does
it] mean? Usually it comes back to some
traumatic incident in our life but rarely do
we dream the incident itself. I feel like
I'm falling down the stairs or I feel like
I'm late for the exam when I have a brief to
write in the Court. So these are the issues
that have developed around these nightmares,
the time for the nightmare and when they
were.
The judge ultimately concluded that the nightmares did "not
appear . . . to be necessarily connected [to the alleged sexual
abuse] because the child was experiencing turmoil within the
family between the father and the mother."
One of the criteria for diagnosing PTSD we noted in Hines
was that the traumatic event is persistently re-experienced in
recurrent distressing dreams of the event. 303 N.J. Super. at
320 n.3. Because the judge deemed the expert's testimony
inadmissible, he deprived himself of the expert's opinion, based
on the expert's knowledge, education, and experience, of the
significance of the child's nightmares and of the opportunity to
18 A-2114-12T2
probe the expert's reasons for relating the nightmares to the
alleged sexual abuse instead of to her parents' marital discord.
Because we hold that the expert's opinion was admissible as
substantive evidence to corroborate the child's allegation of
abuse, we remand the matter to the trial judge for consideration
of the expert's report and testimony. The judge is to weigh all
of the evidence, including Misurell's testimony, make
determinations as to the credibility and weight of that
evidence, and come to a final determination as to whether the
allegation of abuse has been proven by a preponderance of the
evidence. Because his ruling on the admissibility of the
expert's testimony may have resulted in the trial judge not
probing the expert's opinion as he would otherwise, we do not
foreclose the judge from recalling the expert to address any
questions the judge might have regarding his testimony. The
judge need not hear additional testimony but should, of course,
permit further argument in light of this opinion.
We reject defendant I.B.'s cross-appeal from the trial
court's denial of his pre-trial motions to depose A.E.,
Misurell, the forensic interviewer and the Division caseworker.11
The trial judge initially denied defendant's motion for this
11
I.B. also sought to have a mental health professional evaluate
Rose. He has expressly abandoned this issue on appeal.
19 A-2114-12T2
discovery without prejudice on account of his failure to file a
brief in support of the motion. On re-presentation of the
motion, the judge found no showing of good cause.
Rule 5:12-3 compels the Division to provide all relevant
reports as well as the reports of experts and all other
documents on which it intends to rely to the court and counsel
for all parties on the first return date of the order to show
cause. The Division must also make its entire file available
for inspection to the attorneys for the parties. All other
discovery is permitted only on leave of court for good cause
shown.
I.B. has produced no proof that the court abused its
discretion in denying his motion for discovery. His contention
that inconsistencies exist in the witnesses' reports of the
child's statements does not represent good cause for the
discovery he requests. There is no allegation that the Division
failed to comply with its discovery obligations and the record
indicates that trial counsel had nearly four months to review
the Division's evidence and prepare for the fact-finding
hearing. He presents even less reason for his request to us to
permit these depositions on remand, as our review of the record
20 A-2114-12T2
reveals he has already extensively cross-examined each of these
witnesses.12
We deny I.B.'s motion to supplement the record with
documents memorializing the disposition of the criminal charges
against him as irrelevant to the issues on appeal. The parties'
remaining arguments, to the extent we have not addressed them,
lack sufficient merit to warrant discussion in a written
opinion. See R. 2:11-3(e)(1)(E).
Affirmed in part; reversed in part; and remanded for
further proceedings not inconsistent with this opinion. We do
not retain jurisdiction.
12
We reject defendant's request to now retain an expert as
grossly out of time.
21 A-2114-12T2