State of New Jersey v. T.N.

• Court: New Jersey Superior Court Appellate Division
• Decided: February 20, 2024
• Docket: A-0128-23
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0128-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

T.N.,

Defendant-Appellant. _______________________

Submitted January 31, 2024 – Decided February 20, 2024

Before Judges Vernoia and Gummer.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 21-08-0428.

Jospeh E. Krakora, Public Defender, attorney for appellant (James A. Sheehan, Assistant Deputy Public Defender, of counsel and on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Timothy P. Kerrigan, Jr., Chief Assistant Prosecutor, on the brief).

Matthew J. Platkin, Attorney General, attorney for respondent Division of Child Protection and Permanency (Christina Anne Duclos, Deputy Attorney General, on statement in lieu of brief).

PER CURIAM

Defendant T.N. is charged with sexual assaults of two children, A.L. and

V.N., one of whom is his daughter. 1 By leave granted, defendant appeals from

an order denying his request for the release of New Jersey Division of Child

Protection and Permanency (DCPP) records concerning its investigation of

reports to the agency concerning defendant's alleged sexual assaults. We vacate

the trial court's order and remand for further proceedings.

The facts are undisputed. 2 Defendant is charged in an indictment with

three counts of aggravated sexual assault, three counts of sexual assault, six

counts of endangering the welfare of a child, and one count of terroristic threats.

1 We use initials to refer to defendant and the child victims to protect the privacy of the victims of alleged sexual assaults and because records related to child victims of alleged sexual assaults and the names of alleged victims of sexual offenses are excluded respectively from public access under Rule 1:38-3(c)(9) and (d)(12). 2 We accept the version of the facts set forth in defendant's brief and as supported by defendant's appendix on appeal. DCPP filed a letter stating it takes no position on defendant's arguments on appeal. The Passaic County Prosecutor's Office subsequently filed a letter, which we accepted as its brief on appeal, stating it joined in DCPP's position. We therefore have available only defendant's uncontested version of the facts. A-0128-23 2 The indictment alleges the crimes were committed between March 7, 2021, and

May 5, 2021.

In May 2021, A.L.'s mother took her to a hospital after the six-year-old

child reported that defendant had sexually penetrated her vagina with his fingers.

A physician's assistant at the hospital contacted a Sexual Assault Nurse

Examiner about A.L. The Sexual Assault Nurse Examiner then contacted the

Passaic County Prosecutor's Office concerning the "six-year-old female sexual

assault victim who was in the emergency room."

The Passaic County Prosecutor's Office conducted an investigation, which

included forensic interviews of A.L. and V.N. and interviews with others,

including defendant. The Prosecutor's Office also contacted DCPP, which

advised it would investigate the incidents described by the children and also

investigate V.N.'s mother, who allegedly had permitted defendant, a registered

Megan's Law3 offender, access to the children. DCPP investigated A.L. and

V.N.'s allegations.

Following his indictment, defendant sought access to DCPP's

investigation records. Defendant's counsel moved for an order compelling

DCPP to produce its records and reports as to its "investigation of A.L. and

3 N.J.S.A. 2C:7-1 to -23. A-0128-23 3 V.N.'s allegations of sexual abuse against defendant for an in camera inspection

to determine whether such records and reports must be supplied to defendant."

In his brief in support of the motion, defendant acknowledged that DCPP records

are "confidential and may only be disclosed under certain circumstances" but

noted N.J.S.A. 9:6-8.10a(b)(6) permits disclosure of DCPP records where a

court finds that "access to such records may be necessary for determination of

an issue before it." Defendant asserted the DCPP records should be reviewed

by the court because they might reveal statements made by the children and

other witnesses concerning the alleged sexual assaults that may be relevant to a

challenge to testimony presented in support of the State's case at trial or might

otherwise support a defense to the criminal charges.

In response to defendant's motion, the parties consented to the court's

entry of an order directing that DCPP release to the court its "notes, interviews

and investigation reports as to [its] investigation of A.L. and V.N.'s allegations

of sexual abuse against defendant" for the court "to determine whether such

records must be supplied to the defendant."

Following DCPP's production of the records, the court conducted an in

camera inspection and rendered a decision from the bench concerning

defendant's request for the records. The court first explained that it had reviewed

A-0128-23 4 the records to determine if they included information about statements made by

A.L. or V.N., or anyone else, during the DCPP investigation that concerned the

alleged sexual assaults or any information showing A.L., V.N., or any other

witness had "a motive to lie about the allegations."

The court cited State v. Cusick, 219 N.J. Super. 452 (App. Div. 1987),

finding the decision required disclosure of otherwise confidential DCPP records

where the information is essential to the resolution of an issue before a court,

the information is unavailable from any other source, or the information "could

have the effect of changing the outcome of [a] trial." The court then concluded

that based on its review of DCPP records, the requested information "is available

from another source, and . . . the information, if revealed, would not have an

effect on changing the outcome of the trial." The court further opined that

defendant's right to confrontation in his criminal trial "does not require the

pretrial disclosure of any and all information that might be useful in

contradicting unfavorable testimony[.]"

Based on those limited findings, the court concluded defendant was not

entitled to disclosure of any of the DCPP records it had produced. The court

entered an order denying defendant's request for release of the DCPP records.

A-0128-23 5 We subsequently granted defendant's motion for leave to appeal from the

court's order. In his brief on appeal, defendant presents a single argument,

claiming the trial court incorrectly denied his motion for the release of the DCPP

records.

A reviewing court "'generally defer[s] to a trial court's disposition of

discovery matters unless the court has abused its discretion or its determination

is based on a mistaken understanding of the applicable law.'" State v. Brown,

236 N.J. 497, 521 (2019) (quoting Pomerantz Paper Corp. v. New Cmty. Corp.,

207 N.J. 344, 371 (2011)); see e.g., Hammock by Hammock v. Hoffman-

LaRoche, Inc., 142 N.J. 356, 380 (1995) ("The questions whether to seal or

unseal documents are addressed to the trial court's discretion."); N.J. Div. of

Child Prot. & Permanency v. M.C., 456 N.J. Super. 568, 585 (App. Div. 2018)

("This court reviews a trial court's ruling on a motion for disclosure of privileged

or confidential records under an abuse of discretion standard."). We need not,

however, "'defer . . . to a discovery order that is well "wide of the mark," . . . or

"based on a mistaken understanding of applicable law."'" State v. Wyles, 462

N.J. Super. 115, 122 (App. Div. 2020) (quoting State v. Hernandez, 225 N.J.

451, 461 (2016)). A court abuses its discretion when its decision is "made

without a rational explanation, inexplicably departed from established policies,

A-0128-23 6 or rested on an impermissible basis." Flagg v. Essex Cnty. Prosecutor, 171 N.J.

561, 571 (2002) (citation omitted). We apply these standards here.

Neither the prosecutor nor DCPP dispute that defendant may be entitled

to disclosure of DCPP records concerning its investigation of A.L.'s and V.N.'s

claims defendant sexually assaulted them. As recognized in Cusick, N.J.S.A.

9:6-8.10a provides that "[a]ll records of child abuse reports made" pursuant to

N.J.S.A. 9:6-8.10, and all information obtained by DCPP "in investigating"

reports of child abuse "shall be kept confidential and may be disclosed only" in

accord with the express provisions of the statute, 219 N.J. Super. at 456 (quoting

N.J.S.A. 9:6-8.10a(a)). N.J.S.A. 9:6-8.10a(b)(6) allows DCPP to release such

records, "or parts thereof, to" "[a] court, upon its finding that access . . . may be

necessary for determination of an issue before the court[,]" and the court may

disclose the records "in whole or in part to [a] law guardian, attorney, or other

appropriate person upon a finding that such further disclosure is necessary for

determination of an issue before the court." Cusick 219 N.J. Super. at 456

(quoting N.J.S.A. 9:6-8.10a(b)(6)).

A decision whether to disclose DCPP records pursuant to N.J.S.A. 9:6-

8.10a(b)(6) requires that a court first conduct an in camera inspection of the

DCPP records in accordance with the principles established in Cusick. In

A-0128-23 7 Cusick, we considered and approved the procedure employed by the trial court

to determine whether otherwise confidential DCPP records concerning an

investigation of an alleged sexual assault should be released to the defendant

charged with the crimes arising from the assault. Id. at 454. We explained a

court must first make a preliminary determination that access to the records

concerning the alleged victim "may be necessary for the determination of the

issue of credibility" at defendant's criminal trial such that it is appropriate for

the court to conduct an in camera review of the records before deciding the

defendant's request for their release. Id. at 457-59. Here, the State agreed an in

camera review of the records was necessary; it entered into a consent order

permitting the court's in camera review of the records.

In Cusick, we also approved the trial court's in camera review of the

records, finding the court properly had considered whether disclosure was

"essential to the resolution of an issue before the court" or "necessary for the

conduct of the proceedings" and whether the "information contained in the

records could be obtained from other sources through diligent inquiry." Id. at

457. Finding the record supported the trial court's determination that its analysis

of those factors did not support disclosure of the records, we determined "the

procedure employed by the trial court was proper in all respects" and the court's

A-0128-23 8 decision not "to disclose the . . . records did not violate [the] defendant's Sixth

Amendment right to confront witnesses or his Fifth Amendment right to due

process." Id. at 459.

Here, the motion court's analysis, as described in its opinion, accurately

paraphrased the factors we deemed pertinent to a disclosure-of-records

determination under N.J.S.A. 9:6-8.10a(b)(6) in Cusick, but the court's denial of

the disclosure request is untethered to any findings of fact permitting proper

appellate review of its determination and conclusion. See R. 1:7-4. That is,

although the court accurately noted that it was required under Cusick to

determine whether the records included information essential to a resolution of

issues presented in the criminal case, whether the information was available

from another source, and whether the information could affect the outcome of

defendant's trial, the court simply stated in a conclusory fashion that none of

those factors supports the requested disclosure and denied defendant's motion.

A trial court is required to make specific findings of fact and conclusions

of law supporting its determinations. R. 1:7-4(a). A court's "[f]ailure to make

explicit findings and clear statements of reasoning [impedes meaningful

appellate review and] 'constitutes a disservice to litigants, the attorneys, and the

appellate court.'" Gnall v. Gnall, 222 N.J. 414, 428 (2015). Moreover, and as

A-0128-23 9 noted, an abuse of discretion arises, in part, when a decision is "made without a

rational explanation." Flagg, 171 N.J. at 571.

We discern from the motion court's limited findings that the DCPP records

include at least some information that might be either "essential to the resolution

of an issue before the court" or "necessary for the conduct of the proceedings ."

Cusick, 219 N.J. Super. at 457. That is because the court denied defendant's

request, at least in part, based on a finding the records included "information"

that is available from another source. That finding was unnecessary unless the

court also found there was information in the records that would otherwise be

subject to disclosure under the Cusick standard.

In addition, the court also supported its denial of defendant's request for

the records based on an alternative finding that disclosure was not warranted

because the "[C]onfrontation [C]lause of the Sixth Amendment does not require

the pretrial disclosure of any and all information that might be useful in

contradicting unfavorable testimony, as the [C]onfrontation [C]lause would

solely be a trial right." The court's statement is an apparent reference to the

Supreme Court's finding in Pennsylvania v. Ritchie that disclosure to a criminal

defendant of all confidential child abuse related records is not required under

the Confrontation Clause because it "only guarantees 'an opportunity for

A-0128-23 10 effective cross-examination, not cross-examination that is effective in whatever

way, and to whatever extent, the defense might wish.'" 480 U.S. 39, 53 (1987)

(citation omitted). However, we considered Ritchie in our analysis in Cusick,

including Ritchie's holding that a defendant's right to a fair trial is protected by

allowing access to otherwise confidential records following a court's in camera

review. Cusick, 219 N.J. Super at 462-63.

Thus, the motion court's determination it could properly deny defendant's

request for disclosure of the records simply because the Confrontation Clause

does not require the pretrial disclosure of all information that might be useful in

in a defendant's challenge to unfavorable testimony did not provide an

alternative basis to deny defendant's request here. As the Supreme Court made

clear in Ritchie, 480 U.S. at 60, and as we explained in Cusick, 219 N.J. Super

at 462-63, it is only a proper in camera inspection of otherwise confidential child

abuse records that guarantees a defendant the right to a fair trial in a related

criminal proceeding. That is what defendant argues did not take place here.

Accordingly, to the extent the court relied on its finding concerning the

application of the Sixth Amendment as an alternative basis for denying

defendant's motion, it erred by misapplying the Supreme Court's holding in

Ritchie, and ours in Cusick.

A-0128-23 11 The absence of appropriate findings of fact and the court's apparent

misapplication of the law require reconsideration of the court's decision and

order. For those reasons, we vacate the court's order and remand for further

proceedings. On remand, the court must make appropriate findings permitting

appellate review. Those findings must include but are not limited to: whether

the DCPP records include any statements, reports, or notes concerning or

referring to any statements made by A.L. and V.N. or any other witnesses related

to the alleged sexual assaults; and whether the records otherwise contain any

other information pertaining to the sexual assaults. The court must also make

findings of fact supporting its determinations, if made, that information in the

records should not be turned over because it may be obtained elsewhere, and if

so, where the information may be obtained. The court must also make findings

supporting any determination that otherwise pertinent information will not be

disclosed because it is not necessary for a determination of issues at defendant's

trial or would not affect the outcome.

The court shall otherwise make any other factual determinations

supporting its determination concerning the defendant's motion for release of

the information as are pertinent to its final decision. See R. 1:7-4(a). The court

shall conduct such proceedings as it deems appropriate on remand to permit a

A-0128-23 12 decision on defendant's motion in accordance with the applicable legal

principles. In the court's discretion, the court may permit and consider further

briefs, submissions, and argument by the parties. Our decision to remand the

matter shall not be interpreted as expressing a decision on the merits of

defendant's motion.

Vacated and remanded for further proceedings in accordance with this

opinion. We do not retain jurisdiction.

A-0128-23 13