Opinion
DOCKET NO. A-6190-12T4
10-01-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.S., Defendant-Appellant. IN THE MATTER OF K.S. AND D.F., JR., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jonathan M. Villa, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Simonelli, and Leone. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-308-12. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jonathan M. Villa, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
Defendant S.S. appeals the Family Part's determination, based on proofs adduced at a fact-finding hearing, that she committed abuse or neglect of a child in violation of N.J.S.A. 9:6-8.21 (c)(4)(b). The trial court's finding was based on defendant's failure to protect her seventeen-year-old daughter sufficiently after being informed that the daughter had been sexually assaulted in the family residence by defendant's husband.
Applying our limited scope of review to the trial court's findings, as well as the applicable law, we affirm the court's decision. We also reject defendant's procedural claims that the trial court's consideration of certain out-of-court videotaped statements denied her due process and violated the hearsay rules, and that the admission of certain testimony by the Division's expert requires reversal.
I.
The record presents the following pertinent facts, many of which are essentially undisputed.
Defendant is the mother of K.S. ("Karen"), the child victim in this case, and of D.F., Jr. Karen was born in March 1994. When Karen was about three years old, defendant began dating D.F., Sr.
We use a pseudonym for K.S., who is referred to repeatedly in this opinion, for stylistic purposes. For stylistic variation, we refer to D.F., Sr. either by his initials or as "stepfather" or "husband."
Eventually, defendant married D.F., Sr. and he became Karen's stepfather. Thereafter, defendant gave birth to Karen's half-brother, D.F., Jr. According to Karen's account, around the time that she was eight years old, D.F., Sr. began sexually abusing her.
Karen stated that the sexual abuse inflicted by her stepfather usually occurred on weekends when defendant was out of the house. The first such incident occurred when Karen was eight years old and was sitting in the bedroom that defendant shared with D.F., Sr. On that occasion, D.F., Sr. and D.F., Jr. were in the bedroom as well. While D.F., Jr. was asleep and all three of them were in the bed, D.F., Sr. placed his hand in Karen's pants, under her underwear, and touched her clitoris. Karen did not, however, report the incident to defendant at that time.
According to Karen, similar incidents of sexual contact continued to occur at times when defendant left the house. Some incidents of abuse also occurred when defendant was home but asleep. In particular, Karen described situations in which D.F., Sr. penetrated her vagina with his fingers and penis, made her touch his penis, and placed his mouth on her vagina.
Karen further stated that her stepfather started forcing her to have sexual intercourse with him when she was about nine years old. The sexual encounters became less frequent when Karen started staying with her aunt or her cousin to escape from the conduct.
The most recent incident, which precipitated the events of the present case, occurred on Saturday, January 7, 2012. Karen, who was then seventeen years old, spent the evening drinking alcohol with her friends. When Karen returned home, she fell asleep with her clothes on. Karen awoke and discovered that D.F., Sr. was having sexual intercourse with her. He was completely naked. Karen's pants and underwear were off, but she was still wearing her shirt. Karen pushed her stepfather off of her, and she headed into the bathroom.
On January 11, 2012, the Wednesday following this Saturday incident, Karen went to the house of her friend, S.H., and told S.H.'s mother, L.O., that her stepfather had raped her that previous Saturday. L.O. then called defendant and requested her to come to L.O.'s house. When defendant arrived, Karen told defendant what had happened, including her revelation that D.F., Sr. had been sexually abusing her since she was eight years old. Upon hearing this, defendant told Karen that she was going to divorce D.F., Sr. because she would not choose a man over her daughter. Defendant instructed Karen not to go home from L.O.'s house without her.
Defendant and Karen then went home together, where defendant confronted D.F., Sr. in the living room. He initially denied sexually assaulting Karen on the previous Saturday. He claimed that Karen had come home drunk, that he had taken a bottle of alcohol from her, and that he had covered her with a blanket. At this point, Karen left the room and the discussion continued between defendant and D.F., Sr.
Apparently not satisfied with her husband's explanation, defendant demanded that he tell her the truth. In response, D.F., Sr. changed his narrative. He told defendant that on several occasions when defendant went out, Karen would try to have sex with him for money. He specifically admitted to defendant that he had sexual intercourse with Karen on one occasion.
After these revelations, defendant told D.F., Sr. that he must leave the premises. He initially complied and left. Karen apparently remained in the house. However, D.F., Sr. returned to the house later that night, saying that he had nowhere to go. It is undisputed that defendant allowed him back into the home to sleep on the living room floor.
Without any prompting or assistance from defendant, Karen called her friend S.H. S.H. told Karen she should leave the house and stay instead with her. S.H.'s mother L.O. picked Karen up from her house around midnight. According to Karen, defendant did not even realize that her daughter had left the house that night. In fact, defendant apparently was unaware that Karen was not home until the next morning. Defendant then called Karen and asked her why she had left.
Karen tried to go to school the following day, Thursday. However, due to the stress of the situation, Karen decided to leave school and go home early. When she arrived home, D.F., Sr. was not present because he was working, although defendant was there. According to Karen, defendant sat down in the living room with her. Defendant told her that her stepfather had claimed that Karen had asked him for money on the day of the alleged assault for a pair of sneakers. In response, Karen denied that she had engaged in sex relations with her stepfather for money. Karen explained that she had asked her stepfather for money because he had promised her on Christmas that he would do so.
According to Karen, defendant then advised her that she had instructed D.F., Sr. that he had to find his own apartment. She reiterated to Karen that the couple would be separating. Defendant added, however, that the separation had to be done "the right way" because of the stepfather's illnesses, which included high blood pressure, a heart condition, asthma, and an injured back and neck. Defendant further told Karen that she did not want her husband to die, and also noted that D.F., Jr. needed his father.
There is no indication in the record that D.F., Sr. was in mortal danger or needed to be hospitalized. We regard defendant's remark as hyperbole.
Despite having become aware of Karen's report of repeated sexual abuse and her husband's admission that he had sexual intercourse with Karen at least once, defendant nevertheless allowed D.F., Sr. to return to the home. She allowed him to return not only to sleep that night, but also during the following day to take a shower and relax. In at least one instance, Karen's younger half-brother, D.F., Jr. let defendant's husband into the residence.
When Karen returned to the family residence on Thursday to retrieve some clothes, D.F., Sr. was present, although no further actual harm was inflicted by D.F., Sr. in that particular encounter. Karen took some clothing and left the house. She then stayed, first, at the house of a cousin and, then, the house of her father, K.C.
K.C. learned about the sexual abuse that same Thursday. Thereafter, K.C., Karen, and Karen's cousin discussed reporting the sexual abuse to the police, and it was agreed that the police be notified. On the next day, Friday, Karen went to the local precinct to report the abuse, accompanied by her cousin and two aunts. K.C. met them all there.
By contrast, the record reflects that defendant never spoke with Karen about reporting the sexual abuse to the police. Instead, according to Karen, defendant told her that she did not want to report the situation because she was concerned that D.F., Sr. would get arrested and might die in jail.
When the police went to defendant's house later on Friday to conduct an interview, D.F., Sr. was found present in the home. He was there because defendant had invited him into the home to repair a gas line in the stove. After performing that repair, D.F., Sr. had remained at the house for most of the day, apparently to spend time with his son, D.F., Jr.
After the sexual abuse was reported, a detective of the Special Victim's Unit in the County Prosecutor's Office interviewed Karen, defendant, and D.F., Sr. Those interviews were videotaped.
During his own interview with the detective, D.F., Sr. claimed that Karen had falsely accused him of sexual assault because he did not want her to bring her friend into the house and also because he would not give her money when she had asked for it. D.F., Sr. also told the detective that one night, while he was sleeping after drinking some brandy, Karen went into his bedroom and she played with his nipple and he rubbed her clitoris, and then she left when she climaxed. He claimed that after this, she asked him for money. D.F., Sr. also claimed that on another occasion, Karen went into his room and asked him to touch her breasts for money. D.F., Sr. admitted that he then touched Karen's body over her clothes. D.F., Sr. denied any other sexual incidents with Karen. He also specifically denied ever having had sexual intercourse with Karen.
In her own interview with the detective, Karen described her stepfather's acts of sexual abuse. She also explained what had happened after she reported the abuse to her mother. Defendant was also interviewed, and she acknowledged that D.F., Sr. had admitted to her that he had sexual intercourse with Karen on at least one occasion.
The authorities arranged to have Karen evaluated at the Audrey Hepburn Children's House ("AHCH"). During those evaluations, Karen stated that her stepfather had fondled her and had sexual intercourse with her multiple times when she was between the ages of eight and seventeen. Karen told the AHCH staff that her mother had initially been protective of her when Karen divulged the stepfather's sexual assaults. However, defendant then became concerned about her husband's medical condition and also about D.F., Jr.'s needs for his father. According to the AHCH evaluation report, Karen stated that defendant had encouraged her to live with her own father, K.C., so that she would not have to see her stepfather. Karen also told the AHCH staff that D.F., Jr. had let D.F., Sr. into the home, even after defendant had initially directed D.F., Sr. to leave the residence.
D.F., Sr. was subsequently arrested and prosecuted for his sexual assaults upon Karen. He was ultimately found guilty of such offenses and sentenced to an eight-year custodial term. Defendant herself was also initially charged with criminal wrongdoing, but those charges were not pursued. Meanwhile, the Division conducted an emergency Dodd removal of Karen and D.F., Jr. from the family residence.
Our record does not contain the stepfather's judgment of conviction, nor a copy of any criminal complaint that may have been issued against defendant. At the time of the fact-finding hearings in this case, D.F., Sr. was in custody.
See N.J.S.A. 9:6-8.29 (authorizing the Division to conduct such emergency removals pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82); see also N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).
As a result of these events, the Division filed a verified complaint against both D.F., Sr. and defendant, alleging that each of them had committed the abuse or neglect of Karen and her half-brother, D.F., Jr., in violation of N.J.S.A. 9:6-8.21(c)(4)(b). With respect to D.F., Sr., the Division cited his sexual assaults upon Karen. With regard to defendant, the Division argued that she had failed to exercise appropriate care as a parent by not protecting Karen adequately from potential further sexual abuse after her husband's sexual abuse had been revealed to her. In particular, the Division maintained that defendant had wrongfully placed her daughter at substantial risk of harm by allowing D.F., Sr. back into the family residence on the same night that the sexual abuse had been revealed, and also by failing to report the abuse to the police until Karen did so herself three days later.
The trial court conducted its fact-finding hearing over three intermittent days in June and August 2012. The Division presented testimony from the investigating detective and from an expert witness, Dr. Anthony V. D'Urso, the supervising psychologist at AHCH.
Dr. D'Urso was qualified, without objection, as an expert witness in the fields of psychology and child abuse and neglect. Dr. D'Urso opined, among other things, that Karen's allegations of sexual abuse by her stepfather were clinically supported by the circumstances. Dr. D'Urso explained why a teenage child who has been the victim of multiple acts of sexual abuse by a family member over a period of years might delay reporting such assaultive behavior. In addition, the psychologist expressed clinical concerns about defendant's behavior in allowing D.F., Sr. to reenter the house multiple times after the sexual abuse had been revealed to her.
Over the objections of defense counsel, the Division played for the trial court the videotaped interviews of D.F., Sr. and Karen. The Division also presented the videotaped interview of defendant herself. Apart from these proofs, the Division moved into evidence Dr. D'Urso's written report and various other documents, some portions of which defense counsel objected to being considered for their truth.
Neither of the co-defendants, nor the Law Guardian for the minor children, presented any testimony or other evidence at the fact-finding hearing.
Based upon the proofs adduced at the hearing, the trial judge, Hon. Lois Lipton, concluded, by the requisite standard of the preponderance of the evidence, that both defendant and D.F., Sr. had committed abuse or neglect of Karen in violation of N.J.S.A. 9:6-8.21(c)(4)(b). Specifically as to defendant, Judge Lipton concluded that she had placed her daughter "at a substantial risk of harm" by failing to protect her adequately after the sexual assault had been revealed. Among other things, the judge underscored the fact that D.F., Sr. had admitted to defendant, after his initial denial, that he indeed had sexual contact with Karen; that defendant had endangered Karen by permitting D.F., Sr. to reenter and spend time in the residence after their confrontation; and that the defendant had "let it go [on]" for three days before the sexual acts were reported to the police.
In the course of her oral decision, Judge Lipton recognized that defendant undoubtedly felt shocked and betrayed by the revelation of her husband's sexual abuse of her daughter. The judge also recognized that defendant had not purposely or consciously intended to put Karen at risk of substantial harm. The judge further recognized that defendant "instinctively [did] the right thing at first" by assuring Karen that her stepfather would be sent out of the household. Nevertheless, Judge Lipton was persuaded that defendant's ultimate failure to "take proper action to protect her daughter from [D.F., Sr.] after becoming aware of [the sexual] abuse" violated N.J.S.A. 9:6-8.21(c)(4)(b), which has no requirement to show a defendant's purposeful or conscious intent to endanger a child.
II.
On appeal, defendant argues that the finding of abuse or neglect must be reversed because the trial judge misapplied the statute by focusing unduly on the "fairness" of causing Karen to leave the residence and by failing to make an explicit finding that Karen was in "imminent danger." Defendant further argues that her due process rights under the federal and New Jersey constitutions, as well as the hearsay rules, were violated because her trial counsel did not have the opportunity to confront and cross-examine Karen and D.F., Sr. concerning their videotaped hearsay statements. Lastly, defendant contends that Dr. D'Urso improperly testified as a fact witness on certain subjects without personal knowledge of the facts. The Law Guardian joins defendant in advocating reversal, although it agrees with the Division that defense counsel was not improperly deprived of an opportunity to cross-examine Karen or D.F., Sr., and further concurs that Dr. D'Urso's expert testimony was properly admitted. We examine these arguments, in turn.
A.
The applicable provision in Title 9 that guides the disposition of the present appeal defines an "abused or neglected child" as a child under the age of eighteen
whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any otherThe phrase "minimum degree of care," as used in this provision, "refers to conduct [by a child's parent or guardian] that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999); see also N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 305 (2011). As the Supreme Court recently reaffirmed in N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 8, 23 (2013), actual harm to the child need not be proven. "If there is no evidence of actual harm . . . the statute requires a showing of 'imminent danger' or a 'substantial risk' of harm before a parent or guardian can be found to have abused or neglected a child." Id. at 8 (emphasis in original deleted and new emphasis added) (citing N.J.S.A. 9:6-8.21).
acts of a similarly serious nature requiring the aid of the court[.]
[N.J.S.A. 9:6-8.21(c)(4)(b).]
We reject defendant's argument that the trial court failed to find Karen was in "imminent danger," because that finding was implicit in its finding of "substantial risk" and was supported by the evidence. We therefore need not decide whether the court must find "'imminent danger' or a 'substantial risk,'" A.L., supra, 213 N.J. at 8, 23, or "imminent danger and substantial risk," id. at 23, 27.
A parent or guardian "fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S., supra, 157 N.J. at 181 (citing In the Matter of Sellnow v. Perales, 551 N.Y.S.2d 428, 429 (1990)). Additionally, "minimum degree of care" means grossly or wantonly negligent conduct, which is conduct "done with the knowledge that injury is likely to, or probably will, result." Id. at 178 (citations omitted).
When evaluating whether a parent or guardian failed to exercise a minimum degree of care, the court must do so "in light of the dangers and risks associated with the situation." Id. at 181-82. Because this is a fact-sensitive inquiry, it is for the Division initially, and the Family Part judge at the ensuing hearing, "to determine, on a case-by-case basis, whether a caregiver has failed to exercise a minimum degree of care in protecting a child." Id. at 182.
In applying these standards in abuse or neglect cases, the courts must bear in mind that the purpose of Title 9 is "to protect children 'who have had serious injury inflicted upon them' and make sure they are 'immediately safeguarded from further injury . . . .'" A.L., supra, 213 N.J. at 18 (quoting N.J.S.A. 9:6-8.8(a)). Therefore, in abuse or neglect cases, the focus is on "promptly protecting a child who has suffered harm or faces imminent danger." Ibid. (citing N.J.S.A. 9:6-8.21(c)(4)).
On appeal, in reviewing decisions by Family Part judges applying these standards, our scope of review is limited. We "uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Where, as here, an appellant alleges error in "the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom," that customary scope of review is expanded. Ibid. (citations omitted). But "even in those circumstances we will accord deference unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" Ibid. (internal quotation marks and citations omitted). Moreover, given the Family Part's special expertise, appellate courts must accord particular deference to fact-finding in family cases and to the conclusions that logically flow from those findings. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998); see also N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010).
Adhering to these deferential review standards, we sustain the trial judge's finding that defendant abused or neglected her daughter under the circumstances presented in this case. The record as a whole reasonably supports the judge's determination that defendant failed to exercise the "minimum degree of care" required by the statute to safeguard Karen from further sexual abuse or other harm inflicted by her stepfather.
Like the trial judge, we recognize that defendant was in a difficult situation after her daughter had divulged to her that the stepfather had repeatedly sexually abused her in the residence for several years and had most recently done so during the previous weekend. Also, like the trial judge, we are mindful that D.F., Sr. provided financial support to the household from his income, served as a co-parent of defendant's son, and had health problems. Nevertheless, those considerations, as defendant herself initially recognized, were not as vital as the need to protect her daughter from further abuse. The safety of her sexually assaulted teenager had to be her priority. Defendant made a critical and grossly negligent lapse of judgment when she allowed the stepfather to reenter and remain in the residence for several days, without undertaking appropriate and definitive steps to protect Karen from having further contact with him.
Significantly, defendant did not make the arrangements for Karen to live elsewhere while the stepfather continued to have access to the family home. Instead, Karen herself had to take the initiative to find other living quarters. Defendant apparently was unaware that Karen had left the house until the following day. Defendant also permitted D.F., Sr. to sleep over on the sofa, and then return again intermittently over the next several days. She apparently also took no steps to assure that her young son would not let D.F., Sr. into the house.
We acknowledge this would be a more difficult case if defendant had made such arrangements and prevented Karen from having further direct contact with the stepfather.
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There is no indication in the record that D.F., Sr. could not have taken his medications with him when he was initially sent out of the premises. Nor is there any reason presented why a third party, rather than D.F., Sr., could not have repaired the stove. When D.F., Sr. came in to repair the stove, he was allowed to linger in the house and play with his son until the police arrived. Defendant did not report the sexual abuse to the police. Instead, the abuse was reported three days later by Karen herself, with the moral support and encouragement of her father and cousin rather than her own mother. Had that reporting not occurred, the stepfather may well have remained in the house for an undetermined period of time.
As a result of defendant's exceedingly imprudent actions and inactions, Karen encountered her abusive stepfather again when she returned home to pick up her clothes. Although no actual harm resulted from that encounter, the law only requires a "substantial risk" of harm to the minor to satisfy the statute. N.J.S.A. 9:6-8.21(c)(4)(b). The encounter simply should not have occurred.
Defendant argues that the trial court erred in not affording her husband a "presumption of innocence" as to Karen's report of sexual assault when it was first revealed. That standard from criminal law is not dispositive, of course, in this civil law context. Cf. In re Winship, 397 U.S. 358, 363, 90 S. Ct. 1068, 1072, 25 L. Ed. 2d 368, 374 (1970). More importantly, the seriousness of the situation and the need to protect Karen was heightened here by the stepfather's own admission to defendant that he had, in fact, recently engaged in sexual intercourse with Karen. That admission alone warranted swift and decisive protective action by defendant, as Karen's mother. The trial court's focus on defendant's failure to provide a safe environment for Karen is not, as defendant contends, an improper "fairness" concern, but rather a vital safety concern.
Given the "totality of the circumstances," see N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011), the trial judge's conclusion is well supported by the record and the applicable law. The judge's finding of abuse or neglect based upon the record facts is not "so wide of the mark," M.M., supra, 189 N.J. at 279, to be disturbed.
B.
We reject defendant's claim, raised for the first time on appeal, that her constitutional rights were violated by the trial court's consideration of the respective videotaped statements of her daughter and husband. Although defense counsel objected at trial to the videotapes on hearsay grounds, they did not raise any constitutional arguments specific to the videotapes in the trial court, either in their pre-hearing correspondence to the judge or through an oral objection during the proceedings. As our Supreme Court recently emphasized, a failure to raise or preserve a constitutional claim of lack of confrontation can be treated as a waiver of that claim. See State v. Williams, ___ N.J. ___, ___ (2014) (slip op. at 2-3); see also Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (discouraging judicial consideration on appeal of issues not raised in the trial court). That said, we will briefly address defendant's constitutional argument for sake of completeness.
As defendant concedes, she has no constitutional right of confrontation based upon the Sixth Amendment or the cognate provision in the New Jersey Constitution in this civil context. See Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365, 158 L. Ed. 2d 177, 194 (2004) (delineating a criminal defendant's Sixth Amendment right to cross-examine declarants who have made "testimonial" hearsay statements offered by the prosecution). Our State Supreme Court has explicitly "decline[d] to expand the rights of Title Nine respondents to include protections afforded criminal defendants after they have been indicted or taken into custody." State v. P.Z., 152 N.J. 86, 111 (1997).
Since she is not a criminal defendant in this case, defendant instead argues that her constitutional rights of due process under the Fourteenth Amendment of the United States Constitution and Article I, paragraph 1 of the New Jersey Constitution were violated by the admission of the hearsay videotaped statements. She relies in this regard upon Jones v. Department of Corrections, 359 N.J. Super. 70 (App. Div. 2003), a civil case in which we recognized, in the context of a prison discipline administrative hearing, an inmate's due process right to confront certain witnesses against him. That reliance is misplaced. Neither the Supreme Court nor this court have extended the right afforded to the inmate in Jones to a defendant parent in a Title 9 proceeding. Unlike a prison discipline matter, this is not a case that could result in defendant's confinement or penal segregation. Although defendant's parental rights and reputation are surely important, her placement on the Child Abuse Registry does not rise to the level of a loss of liberty. Indeed, the Supreme Court declined in P.Z., supra, 152 N.J. at 112, to import added procedural protections from the criminal justice system to civil Title 9 proceedings involving the parents of abused children. We adhere to that boundary as well.
As a subsidiary argument, defendant maintains that the Division's presentation of the videotaped interviews of Karen and D.F., Sr. violated the hearsay rules. We reject that contention. The out-of-court statements by Karen recounting the abuse or neglect were properly admitted and considered under the special hearsay exception set forth in N.J.S.A. 9:6-8.46(a)(4) (providing that "previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided . . . that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect") (emphasis added). The record contains ample corroboration of Karen's accusations, including Dr. D'Urso's expert findings and D.F., Sr.'s own inculpatory statements, to fulfill that condition of this statutory hearsay exception. The police interview of D.F., Sr., meanwhile, was plainly admissible under the hearsay exception covering a declarant's statements against his personal interests. See N.J.R.E. 803(c)(25).
In addition, many of the basic facts presented in the police interviews of Karen and D.F., Sr. are largely uncontroverted in this case. Defendant has not shown that her husband did not sexually assault her daughter. Nor does she refute that she permitted him to sleep over at the family residence, and to come back and forth to the premises after the assaultive conduct was disclosed.
Even if the interview videotapes had not been played, there is no reason to believe that the Division would have been unable to establish the same core information at the hearing through live testimony. To the extent that defendant suggests that the playing of the videotapes of Karen and D.F., Sr. was inherently unfair to her, we hasten to point out that defendant's own videotaped narrative, and the mitigating explanations she provided to the detective, was also considered by the trial judge as well.
C.
Defendant's final argument is that the Division's expert witness, Dr. D'Urso, improperly was allowed to testify at times as a fact witness. This argument requires little discussion.
To be sure, Dr. D'Urso never met with defendant's daughter and, of course, had no first-hand knowledge of the abuse inflicted by the stepfather. Even so, although the strictures of N.J.R.E. 602 requiring witnesses to have personal knowledge of their factual testimony, that principle is qualified by N.J.R.E. 703, which allows expert witnesses to testify about facts or data that inform their analyses and opinions, so long as that information "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject[.]" N.J.R.E. 7 03.
Here, the information obtained by the team of doctors at AHCH was reasonably considered by Dr. D'Urso as part of his professional functions. As he testified, he oversaw the process of evaluating Karen at AHCH and reviewed those evaluations. Moreover, the written reports of the professional staff who worked under Dr. D'Urso were admissible under Rule 5:12-4(d) as business records. See also N.J.R.E. 803(c)(6) (the business records hearsay exception) and N.J.S.A. 9:6-8.46(a)(3) (providing a special hearsay exception in Title 9 cases for certain business records). In addition, out of an abundance of caution, the trial judge specifically excluded information in the reports that referred to the medical examination that was performed on Karen, the results of which are not central to the Division's abuse or neglect claims against defendant relating to her inaction.
III.
For these various reasons, the trial court's finding of abuse or neglect by defendant is affirmed I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION