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)

161 A.3d 132, 450 N.J. Super. 210

• Court: New Jersey Superior Court Appellate Division
• Decided: May 22, 2017
• Docket: A-2565-15
• Status: Published

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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

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

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.

48 A-2565-15T2 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