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NOT FOR PUBLICATION WITHOUT THE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-5660-16T1
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
C.H.,
Defendant-Appellant,
and
J.M.,
Defendant.
__________________________________
IN THE MATTER OF J.H.,
a Minor.
__________________________________
Submitted October 31, 2018 – Decided November 30, 2018
Before Judges Reisner and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FN-02-0148-15.
Joseph E. Krakora, Public Defender, attorney for
appellant (John A. Albright, Designated Counsel, on
the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason W. Rockwell, Assistant Attorney
General, of counsel; Sara M. Gregory, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Olivia Belfatto Crisp, Assistant
Deputy Public Defender, on the brief).
PER CURIAM
In this Title Nine case, defendant C.H. appeals from a May 4, 2015 fact
finding order, determining that she abused or neglected her daughter J.H.1 See
N.J.S.A. 9:6-8.21 (c)(4)(b). After reviewing the record, we conclude that the
trial judge's decision is supported by substantial credible evidence. See N.J.
Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). We affirm
substantially for the reasons stated in the judge's written opinion issued with the
order. We add these comments.
1
We use initials to protect the parties' privacy. The fact finding order was
rendered ripe for appellate review after the court entered a final order on July
20, 2017, dismissing the Title Nine litigation.
A-5660-16T1
2
The evidence is discussed at length in the trial judge's opinion and can be
summarized more briefly here. C.H. and J.M. are the child's parents. After
drinking large amounts of beer in a Paterson bar, the parents returned home and
got into a drunken brawl with each other in front of the child. 2 At one point,
defendant slapped J.M.'s face, and the paternal grandmother, who lived with the
family, tried to intervene. Defendant grabbed the grandmother by the hair, and
either intentionally or accidentally caused the grandmother's head to hit a wall.
The grandmother collapsed and died. The child, who was six years old, saw
defendant assault the grandmother, and saw the grandmother collapse.
A psychologist, Dr. Anthony D'Urso, testified that the child was
traumatized by the incident, and suffered emotional harm, plus physical
symptoms such as stomach aches. He testified that, due to the trauma, the child
required individual and family therapy. A case worker from the Division of
Child Protection and Permanency (Division), who interviewed the child several
hours after the incident, also observed the child's traumatized emotional
condition. The worker testified that it was "the saddest interview" she had ever
conducted.
2
The child described it as "a fist fight."
A-5660-16T1
3
On this appeal, defendant presents the following points of argument for
our consideration:
I. THE FINDING OF ABUSE OR NEGLECT MUST
BE REVERSED BECAUSE THE TRIAL JUDGE
ERRONEOUSLY CONCLUDED THE NON-
TESTIFYING PARENTS' DEMEANOR
SUPPORTED ITS FINDINGS OF FACTS.
II. THE LOWER COURT'S CONCLUSION THAT
J.H. SUFFERED ACTUAL EMOTIONAL HARM
FROM WITNESSING DOMESTIC VIOLENCE AND
SUBSTANCE ABUSE IS ERRONEOUS AND MUST
BE REVERSED; THE VAGUE "SYMPTOMS"
PROFERRED – SUCH AS MERE SADNESS OR
DREAMS – FELL FAR SHORT OF ESTABLISHING
ANY SUCH HARM.
III. AFTER CORRECTLY RULING HEARSAY AND
EXPERT OPINIONS CONTAINED WITHIN THE
AUDREY HEPBURN CHILDREN'S HOUSE
REPORT WOULD BE EXCLUDED FROM
EVIDENCE ABSENT TESTIMONY BY ITS
AUTHOR, THE COURT ERRONEOUSLY
ADMITTED AND RELIED ON THIS SAME
EXCLUDED EVIDENCE WHEN THE AUTHOR OF
THE REPORT FAILED TO TESTIFY.
IV. THE COURT ERRED IN ITS EXTENSIVE
RELIANCE ON D'URSO'S OPINION THAT J.H.
SUFFERED EMOTIONAL HARM BASED UPON
OBSERVATIONS WHICH WERE NOT HIS OWN;
[DR.] D'URSO DID NOT PERFORM THE
EVALUATION OF J.H., THEREFORE HIS OPINION
WAS MERELY AN IMPERMISSIBLE [] NET
OPINION.
A-5660-16T1
4
After reviewing the record, we agree with defendant that the trial court
erred in noting the parents' courtroom demeanor, because they neither testified
nor attempted to use their courtroom demeanor to influence the outcome of the
hearing. See N.J. Div. of Youth & Family Servs. v. I.S., 422 N.J. Super. 52, 73-
74 (App. Div. 2011), aff'd in part, rev'd in part on other grounds, 214 N.J. 8
(2013); State v. Adames, 409 N.J. Super. 40, 60 (App. Div. 2009). However,
we conclude that the error – which consisted of a brief observation at the end of
the judge's lengthy opinion – was harmless. See R. 2:10-2. The judge did not
base her factual findings on the parents' demeanor. Rather, she based her
findings on the ample admissible evidence in the record.
Defendant also contends that Dr. D'Urso should not have been permitted
to testify about a psychological report authored by one of his subordinates. In a
related point, she contends that because D'Urso did not personally observe the
child, his testimony was a net opinion. Defendant did not object to Dr. D'Urso's
trial testimony, and we conclude that she waived the arguments she now asserts
in points three and four. See N.J. Div. of Youth & Family Servs. v. M.C. III,
201 N.J. 328, 341-42 (2010).
Notably, Dr. D'Urso was part of a team of psychologists who evaluated
the child. He supervised the work of Dr. Mroz, who interviewed the child and
A-5660-16T1
5
later provided her with therapy. Following a process he described as standard
protocol in the field of psychology, Dr. D'Urso collaborated with Dr. Mroz in
preparing a report on the child's condition, and reviewed and signed off on Dr.
Mroz's findings. In this case, Dr. Mroz was also present in court and actually
testified just before the Division presented D'Urso's testimony. Dr. Mroz's
testimony was given in the context of a defense motion to allow the child to visit
her parents in the Bergen County Jail. Dr. Mroz testified at length about the
trauma the child had suffered as a result of witnessing the domestic violence
between her parents, and seeing her grandmother die during the incident.
Defense counsel cross-examined Dr. Mroz on her opinions. Immediately, after
the motion hearing concluded, the fact finding trial continued before the same
trial judge, with Dr. D'Urso as the Division's witness. Had defendant timely
objected to Dr. D'Urso's testimony, on the grounds that Dr. Mroz and not Dr.
D'Urso had interviewed the child, the Division could have had Dr. Mroz testify.
Instead, Dr. D'Urso testified, without objection.
Against that backdrop, we conclude that defendant waived any objection
to Dr. D'Urso's testimony. See M.C. III, 201 N.J. at 341-42. Additionally,
defendant did not raise before the trial judge the issues she now presents,
concerning D'Urso's alleged net opinions or the admissibility of his testimony
A-5660-16T1
6
about the child's trauma. However, even if we consider those belated arguments,
we find they are unsupported by the record and are without sufficient merit to
warrant further discussion. R. 2:11-3(e)(1)(E). We find no abuse of the trial
judge's discretion in considering D'Urso's testimony. See N.J. Div. of Child
Prot. & Permanency v. K.G., 445 N.J. Super. 324, 342 (App. Div. 2016).
As previously noted, the judge's factual findings concerning the
underlying domestic violence, the child's having witnessed domestic violence ,
and the serious emotional harm it caused the child, are supported by substantial
credible evidence. The record does not support defendant's efforts to minimize
the evidence of trauma to the child. We, therefore, affirm the order on appeal.
Affirmed.
A-5660-16T1
7