DCPP VS. N v. AND A.H., J.D.M., AND E.R.-L., IN THE MATTER OF D.D.C.H., E.E.R.-L, AND M.D.C. (FN-09-0206-18, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-2062-18T4

NEW JERSEY DIVISON
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

v.

N.V.,

Defendant-Appellant,

and

A.H., J.D.M., and E.R.-L.,

Defendants.
_____________________________

IN THE MATTER OF D.D.C.H.,
E.E.R.-L., and M.D.C., minors.
_____________________________

Submitted February 3, 2020 – Decided August 14, 2020

Before Judges Ostrer and Susswein.

On appeal from Superior Court of New Jersey,
 Chancery Division, Family Part, Hudson County, FN-
09-0206-18.

Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Carol L. Widemon, Designated Counsel, on
the briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Sara M. Gregory, Deputy Attorney
General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Danielle Ruiz, Designated
Counsel, on the brief).

PER CURIAM

Defendant, N.V., appeals from a Family Part order finding that she abused

or neglected her twelve-year-old daughter, M.D.C., by failing to protect her from

sexual abuse committed by the child's stepfather, E.R.-L.1 M.D.C. told child

welfare authorities and police that she had informed her mother about the sexual

misconduct on two occasions. The key issue in this appeal is whether the

Division of Child Protection and Permanency (Division) satisfied its burden to

1
We use initials to protect the identities of the parties, victim, and family
members involved in this matter. R. 1:38-3(d)(11).
A-2062-18T4
2
corroborate M.D.C.'s out-of-court statement at the Title Nine fact-finding

hearing.

To meet that burden, the Division introduced statements defendant made

to a Division caseworker and later repeated to a psychologist conducting a

parental evaluation. The gravamen of defendant's argument on appeal is that the

statements she made acknowledging that M.D.C. told her about the sexual abuse

should not have been admitted into evidence at the fact-finding hearing.

Defendant contends the admissions she made to the psychologist, who did not

testify at the hearing, were presented to the court in the form of inadmissible

hearsay. Defendant further contends the admissions she made to the Division

caseworker in the course of two interviews, conducted a few hours apart, should

have been suppressed as the fruit of Fifth Amendment violations. Defendant

asserts the caseworker did not administer Miranda2 warnings at the outset of the

initial interview and thereafter did not scrupulously honor defendant's right to

remain silent, which defendant had invoked when questioned by police before

the second interview with the Division caseworker.

After carefully reviewing the record in light of the applicable legal

principles, we affirm the trial court's ruling that defendant abused or neglected

2
Miranda v. Arizona, 384 U.S. 436 (1966).
A-2062-18T4
3
her daughter. We agree with defendant the admissions she made to the non-

testifying psychologist during the parental evaluation were inadmissible because

the Division failed to lay the foundation for the business records exception to

the hearsay rule, N.J.R.E. 803(6)(c). That error was harmless, however, because

the admissions defendant made to the Division caseworker were properly

admitted into evidence and sufficiently corroborated the child's out -of-court

statement. We need not decide whether the Division caseworker violated

defendant's Miranda rights because regardless of the resolution of defendant's

fact-sensitive Fifth Amendment contentions, we would decline to extend the

exclusionary rule that applies in criminal cases to the Title Nine fact-finding

hearing convened in this case. We therefore conclude the trial court's finding of

abuse or neglect was reasonably based on competent admissible evidence and

affirm the hearing court's order.

I.

In December 2017, the Division filed a verified complaint for care and

supervision of defendant's three biological children, D.D.C.H, E.E.R-L., and

M.D.C. In June 2018, the trial court conducted a Title Nine fact-finding hearing,

see N.J.S.A. 9:6-8.44 (defining the term "fact-finding hearing" as "a hearing to

determine whether the child is an abused or neglected child" as defined in Title

Nine), after which it entered a finding of abuse or neglect against defendant
A-2062-18T4
4
under N.J.S.A. 9:6-8.21(c). Thereafter, the court entered a dispositional order

that, in pertinent part, continued previously imposed requirements that

defendant attend individual counseling and that M.D.C. receive trauma-focused

therapy. After a final compliance review, the court issued orders terminating

litigation and transferring sole legal and physical custody of the children to

defendant. Defendant now appeals the trial court's finding she had abused or

neglected M.D.C.

II.

The trial court heard testimony from two witnesses, a Division

caseworker, Susana Crespo, and a professional consultant who appeared as the

Division's expert, Dr. Anthony D'Urso. The court also admitted into evidence

several documentary exhibits, including Crespo's investigation summary and

reports prepared by non-testifying clinicians who evaluated defendant and

M.D.C.

A.

Ms. Crespo's Testimony

On June 24, 2017, the Division received a referral from a mental health

worker at Palisades Medical Center concerning suspected sexual abuse of

M.D.C., then nine years old. M.D.C. presented with a rash that extended from

her vaginal area to her rectum, leading the hospital physician to suspect she was
A-2062-18T4
5
infected with herpes. The referral was assigned to Crespo, who contacted the

Hudson County Prosecutor's Office for direction on how to proceed. Lieutenant

Turro from the Prosecutor's Special Victims Unit (SVU) told Crespo "to proceed

with the investigation and if any disclosure to call" the Prosecutor's Office.

Crespo arrived at Palisades Medical Center at 7:05 p.m. She spoke with

the doctor treating M.D.C. before introducing herself to defendant and the child.

Crespo explained that she was there to investigate the referral and requested to

speak with M.D.C. in private. Defendant initially objected but eventually

relented.

M.D.C. disclosed to Crespo that her stepfather, E.R.-L., "touched her in

her private area at the old house [in Elizabeth]. She stated that he had rubbed

his hand in a circular motion on her skin, in her genital area. And that [s]he

thinks he put his finger inside because it hurt it." M.D.C. said she told her

mother about E.R.-L. rubbing her genitals and demonstrated for her mother the

circular motion E.R.-L. had used. M.D.C. told Crespo that E.R.-L. left the house

in Elizabeth shortly after she told her mother about the incident, but E.R.-L.

eventually moved back into the house.

M.D.C. told Crespo that a few days after E.R.-L. moved back in, the

family moved from Elizabeth to a house in West New York. M.D.C. told Crespo

that E.R.-L. "touched her private area on her skin with his private area" two or
A-2062-18T4
6
three times in the new house. She told Crespo "there were times that he put

saliva on his private area and then he would put it by her private area and it

would hurt her a lot." M.D.C. told Crespo the most recent incident with E.R.-

L. occurred one week before the interview, on June 16, 2017.

M.D.C. further told Crespo that her older sister, D.D.C.H., took care of

her when their mother was working. M.D.C. added her mother "always told her

sister not to leave [M.D.C.] alone with [E.R.-L.] and to watch her all the time."

M.D.C. told Crespo the sexual abuse occurred while defendant was at work and

her sister was in a different room. M.D.C. related to Crespo that she told her

mother that while they were living in West New York, E.R.-L. put his hand on

the outside of her private part. M.D.C. explained to Crespo she did not tell her

mother that E.R.-L. placed his private part on her private part because she did

not want E.R.-L. to get arrested. M.D.C. told Crespo that her mother told her

that she would speak with E.R.-L., and that he would not do those things to her

again.

Around 8:00 p.m., Crespo contacted Lieutenant Turro and informed him

as to what she learned from her interview of M.D.C. Turro requested Crespo

bring the family to the SVU facility. Crespo told Turro she would d o so after

she interviewed D.D.C.H.

A-2062-18T4
7
 Crespo interviewed D.D.C.H. and obtained more information concerning

the family's home life. D.D.C.H. confirmed that defendant told her she did not

want E.R.-L. to take care of M.D.C.

After concluding her interview with D.D.C.H, Crespo contacted

Lieutenant Turro around 9:00 p.m. Turro told Crespo he would go to the hospital

to speak with the doctor. After speaking with Turro, Crespo told defendant that

a criminal investigation was underway. Crespo then interviewed defendant

while they waited for Turro to arrive.

Crespo asked defendant several times whether M.D.C. had ever told her

that E.R.-L. had engaged in sexually inappropriate behavior. At first, defendant

denied knowing anything about E.R.-L. sexually abusing M.D.C. During this

portion of the interview, defendant repeatedly asked Crespo if she was

questioning her for the purpose of arresting her. Crespo told defendant she was

just trying to understand what had happened. Eventually, defendant admitted to

Crespo that while the family was living in Elizabeth, M.D.C. told her about an

incident in which E.R.-L. had touched M.D.C. on her private area in a circular

motion. Defendant said M.D.C. demonstrated the action E.R.-L. performed.

Defendant confirmed she told E.R.-L. to leave the house in Elizabeth

because of M.D.C.'s disclosure of sexual misconduct. She also admitted to

Crespo that she permitted E.R.-L. to return to the household shortly thereafter.
A-2062-18T4
8
Defendant told Crespo she made certain M.D.C. was not left alone with E.R.-L.

Defendant denied knowing anything about any subsequent sexual misconduct

while the family was living in West New York.

Sometime before 9:30 p.m., Turro arrived at Palisades Medical Center and

met with Crespo to discuss what she had learned from her interviews. Crespo

and Turro arranged for M.D.C. and defendant to travel to the SVU headquarters.

Crespo then left to interview E.R.-L. and his nieces. 3

At SVU, M.D.C. provided a statement to detectives consistent with the

statement she had given to Crespo. Defendant asserted her right to remain silent

and refused to provide a statement. Defendant and M.D.C were then taken to

Christ Hospital to complete a sexual assault forensic examination.

At 12:30 a.m., Crespo arrived at SVU headquarters. She was informed

defendant had invoked her right to remain silent. She also was told the police

did not intend to charge defendant at that time. 4 Crespo then went to Christ

Hospital to continue her discussion with defendant. Crespo asked defendant

3
During subsequent interviews with the police, E.R.-L. admitted he sexually
abused M.D.C. multiples times at the houses in Elizabeth and West New York.
He told police defendant did not know about the abuse and never confronted
him.
4
We note that defendant was never arrested and never charged with a criminal
offense relating to the abuse or neglect of M.D.C.
A-2062-18T4
9
whether M.D.C. had disclosed to her that E.R.-L. had committed a second act of

abuse, this time while they were living in West New York. Defendant admitted

to Crespo that M.D.C. had told her that E.R.-L. had touched her private area in

a circular motion while they were living at the house in West New York.

B.

Dr. D'Urso's Testimony

Dr. D'Urso testified the Division requested that Audrey Hepburn

Children's House (AHCH) conduct a psycho-social evaluation of M.D.C. and a

parental evaluation of defendant. Dr. Richard Coco evaluated defendant, and

Dr. Sara Moore evaluated M.D.C. The State introduced their reports through

Dr. D'Urso, the supervising psychologist at AHCH. Neither Coco nor Moore

testified at the fact-finding hearing.

Dr. D'Urso testified that in the course of the evaluation conducted by Dr.

Moore, M.D.C. stated she was abused in Elizabeth and West New York. D'Urso

testified M.D.C. told Dr. Moore that E.R.-L. fondled her and had placed his

penis near her labia. M.D.C. also told Dr. Moore she had informed her mother

at different times that E.R.-L. was abusing her. Dr. Moore determined there was

clinical support for multiple sexual-contact incidents.

Dr. D'Urso also testified as to what defendant told Dr. Coco during the

parental evaluation. Specifically, Dr. D'Urso testified that defendant admitted
A-2062-18T4
10
to Dr. Coco that M.D.C. had twice reported to her that she had been touched

inappropriately by E.R.-L. Dr. D'Urso also testified that defendant told Dr. Coco

she had instructed E.R.-L. to leave the household but allowed him to return

because it seemed to her that M.D.C. was not all that affected by the sexual

abuse.

C.

Hearing Court's Factual Findings

The hearing court found Crespo to be a credible witness and her testimony

to be uncontroverted. The court credited Crespo's testimony concerning

M.D.C.'s descriptions of the sexual abuse she suffered and her disclosures to

defendant that E.R.-L. was abusing her. The court also credited Crespo's

testimony that (1) defendant admitted she was aware of E.R.-L.'s sexual

misconduct based on two separate disclosures from M.D.C., and (2) defendant

admitted she had permitted E.R.-L. to continue to live with the family after

learning about the sexual abuse.

The court found Dr. D'Urso's testimony credible as well. The court

credited Dr. D'Urso's testimony that defendant admitted to Dr. Coco during the

parental evaluation that M.D.C. had disclosed E.R.-L's sexual misconduct to her.

The court also found that M.D.C.'s disclosures of E.R.-L.'s sexual abuse

were credible. The judge explained:
A-2062-18T4
11
 [M.D.C.] reported sexual abuse to [Crespo], to the
clinician at [AHCH], and she was consistent. Even
though, and I think the reasoning here by [AHCH] is
significant, as Dr. D'Urso testified [M.D.C.] had no
motive to fabricate, in fact she was pulled the other
way. She didn't want to disrupt her family. She didn't
want to see her stepfather go to jail. . . .

So, in essence, she had no motive to fabricate because
she wanted her father home to preserve the unit of the
family. The doctor noted she was also consistent in her
detail that she gave about the acts of abuse, that the
knowledge she had including that [E.R.-L.] used saliva
to lubricate his sexual organ was beyond what the
typical nine-year old would be expected to fabricate.

Importantly for purposes of this appeal, the hearing court found that both

Crespo's testimony and D'Urso's testimony corroborated M.D.C.'s statements

regarding defendant's knowledge of the sexual misconduct. The court thereupon

found that defendant was aware of the allegations of sexual abuse but failed to

notify police or the Division and failed to keep E.R.-L. away from M.D.C. apart

from briefly expelling E.R.-L. from the house in Elizabeth. The court concluded

that defendant thereby abused or neglected her daughter by failing to protect her

from the ongoing sexual abuse committed by E.R.-L.

III.

We begin our analysis by acknowledging the legal principles governing

this appeal. "[W]e accord substantial deference and defer to the factual findings

A-2062-18T4
12
of the Family Part if they are sustained by 'adequate, substantial, and credible

evidence' in the record." N.J. Div. of Child Prot. & Permanency v. N.B., 452

N.J. Super. 513, 521 (App. Div. 2017) (quoting N.J. Div. of Youth & Family

Servs. v. R.G., 217 N.J. 527, 552 (2014)). "This is '[b]ecause of the family

courts' special jurisdiction and expertise in family matters.'" N.J. Div. of Child

Prot. & Permanency v. A.D., 455 N.J. Super. 144, 155 (App. Div. 2018) (quoting

N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010)

(alteration in original)).

At a fact-finding hearing to determine whether a child was abused or

neglected within the meaning of N.J.S.A. 9:6-8.21(c), "[t]he Division bears the

burden of proof . . . and must prove . . . harm . . . by a preponderance of the

evidence." N.J. Dep't of Children & Families, Div. of Youth & Family Servs.

v. A.L., 213 N.J. 1, 22 (2013); accord N.J.S.A. 9:6-8.46(b)(1). The Division

must meet its burden with "competent, material and relevant" proofs. N.J.S.A.

9:6-8.46(b).

Absent an abuse of discretion, we defer to the Family Court to determine

whether the Division's proofs are admissible. N.J. Div. of Youth & Family

Servs. v. I.H.C., 415 N.J. Super. 551, 571 (App. Div. 2010) (applying an abuse

of discretion standard of review to trial courts' determinations on the

admissibility of other-crime evidence (citing State v. Darby, 174 N.J. 509, 518
A-2062-18T4
13
(2002))). "Under that standard, an appellate court should not substitute its own

judgment for that of the trial court, unless 'the trial court's ruling "was so wide

of the mark that a manifest denial of justice resulted."'" State v. Kuropchak, 221

N.J. 368, 385 (2015) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). In

the context of a hearsay error, moreover, we will not reverse the trial court unless

"the error led the [factfinder] to a result it otherwise might not have reached."

Neno v. Clinton, 167 N.J. 573, 587 (2001) (quoting State v. Hightower, 120 N.J.

378, 410 (1990)).

We review a trial court's legal conclusions de novo. State v. Smith, 212

N.J. 365, 387 (2012) (citing State v. Handy, 206 N.J. 39, 45 (2011)). Where a

court's ruling "'essentially involved the application of legal principles and did

not turn upon contested issues of witness credibility,' we review the court's

corroboration determination de novo." A.D., 455 N.J. Super. at 156; see also

N.B., 452 N.J. Super. at 521 (reviewing de novo the trial court's conclusion that

a child's statements were corroborated pursuant to N.J.S.A. 9:6-8.46(a)).5

5
The Division and M.D.C.'s Law Guardian both contend the appropriate
standard for our review of the trial court's corroboration determination is plain
error because defendant did not raise the issue below. See R. 2:10-2
(disregarding error raised for the first time on appeal "unless it is of such a nature
as to have been clearly capable of producing an unjust result"). Our own review
of the record reveals that defendant did in fact object to Dr. D'Urso's testimony
and to the admissibility of the expert reports as hearsay. Defendant also
A-2062-18T4
14
 A child has been abused or neglected when the child's

physical, mental, or emotional condition has been
impaired or is in imminent danger of becoming
impaired as the result of the failure of his parent or
guardian . . . to exercise a minimum degree of care . . .
in providing the child with proper supervision or
guardianship, by unreasonably inflicting or allowing to
be inflicted harm, or substantial risk thereof.

[N.J.S.A. 9:6-8.21(c)(4)(b).]

"[T]he phrase 'minimum degree of care' refers to conduct that is grossly or

wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human

Servs., 157 N.J. 161, 178 (1999). Conduct is "willful or wanton if done with the

knowledge that injury is likely to, or probably will, result." Ibid. (citing

McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). Willful or wanton

conduct also includes "actions taken with reckless disregard for the

consequences." Ibid. (citations omitted). In sum, "[w]here an ordinary

reasonable person would understand that a situation poses dangerous risks and

acts without regard for the potentially serious consequences, the law holds him

[or her] responsible for the injuries he [or she] causes." N.J. Div. of Youth &

challenged the admissibility of her statements to Crespo because of an alleged
Miranda violation. Accordingly, although the arguments defendant raises on
appeal are more detailed than the arguments she presented to the hearing court,
we do not apply the plain error standard on these issues.
A-2062-18T4
15
Family Servs. v. A.R., 419 N.J. Super. 538, 544 (App. Div. 2011) (quoting G.S.,

157 N.J. at 179).

Importantly for purposes of this appeal, the relevant statute provides that

the Division may introduce "previous statements made by the child relating to

any allegations of abuse or neglect . . . , 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) (emphasis added).

In our recent decision in A.D., we explained the legal principles involved

in corroborating a child's statement under N.J.S.A. 9:6-8.46(a)(4):

A child's statement need only be corroborated by
"[s]ome direct or circumstantial evidence beyond the
child's statement itself." "The most effective types of
corroborative evidence may be eyewitness testimony, a
confession, an admission or medical or scientific
evidence." However, corroboration of child sexual
abuse does not have to be "offender-specific," because
"[i]t would be a rare case where evidence could be
produced that would directly corroborate the specific
allegation of abuse between the child and the
perpetrator." Rather, corroborative evidence "need
only provide support" for the child's statements and
may be circumstantial.

[A.D., 455 N.J. Super. at 157 (alterations in original)
(emphasis added) (citations omitted).]

The categories of corroborative evidence a trial court may rely upon under

N.J.S.A. 9:6-8.46(a)(4) are numerous and varied. See Z.P.R., 351 N.J. Super.

A-2062-18T4
16
at 436 (noting that "[s]uch evidence has included a child victim's precocious

knowledge of sexual activity, a semen stain on a child's blanket, a child's

nightmares and psychological evidence" (quoting State v. Swan, 790 P.2d 610,

615–16 (Wash. 1990))). All manner of corroborative evidence shares a common

and essential prerequisite: "[t]he evidence must be independently admissible for

a court to deem it corroborative of a child's statement." A.D., 455 N.J. Super.

at 157; see also N.B., 454 N.J. Super. at 524–26 (concluding evidence was

insufficient to corroborate the child's statement because the evidence was

inadmissible hearsay).

IV.

Defendant does not dispute the Division established that M.D.C. had been

sexually abused on multiple occasions by her stepfather. The dispute centers,

rather, on whether the Division proved that defendant became aware of that

abuse and thereafter failed to take reasonable precautions to protect her daughter

from further harm. As noted, the gravamen of defendant's argument on appeal

is the Division failed to present competent admissible evidence to corroborate

M.D.C.'s statement that she had told defendant about the sexual abuse. The

hearing court found corroboration by relying on defendant's statements to

Crespo and Dr. Coco in which defendant admitted that her daughter told her of

the sexual abuse. There is no doubt that defendant's admissions, if presented to
A-2062-18T4
17
the hearing court as admissible evidence, would corroborate the child's

statement for purposes of N.J.S.A. 9:6-8.46(a). The critical question before us,

therefore, is whether defendant's corroborative admissions were independently

admissible. See A.D., 455 N.J. Super. at 157 (requiring corroborative evidence

of a child's statement to be independently admissible).

The Division introduced defendant's admissions through two witnesses,

Division caseworker Crespo, who related what she learned from her interviews,

and Dr. D'Urso, who related what he learned from reading a report prepared by

a non-testifying doctor who interviewed defendant in the course of the parental

evaluation. We note that if defendant's admissions were properly admitted at

the hearing through either witness, the Division's burden of corroboration under

N.J.S.A. 9:6-8.46(a) would be satisfied. Thus, in order to prevail, defendant

must show that the trial court erred both in admitting her admissions through

Dr. D'Urso's testimony and in admitting her admissions through Crespo's

testimony.

A.

We first address the admissibility of defendant's statement that was made

to Dr. Coco. The Division did not present Dr. Coco as a witness to testify as to

what defendant told him during the parental evaluation interview. Rather,

defendant's admission to Dr. Coco was elicited through the testimony of Dr.
A-2062-18T4
18
D'Urso, who testified as an expert. 6 Although Dr. D'Urso supervised Dr. Coco,

he was not present at the interview during which defendant made her

corroborative admission. The Division thus presented defendant's admissions

to Dr. Coco as substantive proof in the form of hearsay.

Hearsay statements, of course, are inadmissible unless they fall within an

exception to the hearsay rule. N.J.R.E. 802. The Division argues that

defendant's statement to Dr. Coco that was memorialized in his parental

evaluation report is admissible as substantive evidence under the business-

record exception, N.J.R.E. 803(c)(6). 7 That exception provides:

6
We note that New Jersey Rule of Evidence 703 permits an expert to base his
or her opinion on facts or data "perceived by or made known to the expert at or
before the hearing." "If of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject, the facts or
data need not be admissible in evidence." Ibid. However, "[a]n important
limitation . . . 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." N.J. Div. of Child Prot. & Permanency v. T.U.B., 450 N.J. Super.
210, 241–42 (App. Div. 2017). The facts, "which are often hearsay, may not be
considered for their truth as substantive proof." Id. at 242.
7
N.J.S.A. 9:6-8.46(a)(3) and Rule 5:12-4(d) codify the Division's ability to
introduce reports prepared by the Division's staff and professional consultants.
Importantly, however, a report offered under the statute and rule "may be
admitted only if it satisfies the prerequisites for admissibility set forth in
N.J.R.E. 803(c)(6)." N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J.
Super. 118, 131 (App. Div. 2010); accord N.J. Div. of Child Prot. & Permanency
v. N.T., 445 N.J. Super. 478, 487 (App. Div. 2016) (admitting reports prepared
A-2062-18T4
19
 A statement contained in a writing or other record of
acts, events, conditions, and, subject to Rule 808,
opinions or diagnoses, made at or near the time of
observation by a person with actual knowledge or from
information supplied by such a person, if the writing or
other record was made in the regular course of business
and it was the regular practice of that business to make
it, unless the sources of information or the method,
purpose or circumstances of preparation indicate that it
is not trustworthy.

[N.J.R.E. 803(c)(6).]

Thus, "[t]o qualify as a business record under N.J.R.E. 803(c)(6), a writing must

meet three conditions: it must be made in the regular course of business, within

a short time of the events described in it, and under circumstances that indicate

its trustworthiness." Kuropchak, 221 N.J. at 387–88 (citing State v. Matulewicz,

101 N.J. 27, 29 (1985)).

The Division did not present a business-records certification in support of

the admissibility of Dr. Coco's report. See N.T., 445 N.J. Super. at 500 (holding

that a Division worker's certification supported the admissibility of a record

under N.J.R.E. 803(c)(6)). Instead, the Division relied solely on testimony from

by Division professional consultants and staff only if the reports "meet the
requirements of N.J.R.E. 803(c)(6), [regardless of] whether the report is offered
under N.J.S.A. 9:6-8.46(a)(3)[] [or] Rule 5:12-4(d)"); see also N.B., 452 N.J.
Super. at 524 (admitting reports prepared by professional consultants of the
Division "for the purpose of guiding the Division in determining the appropriate
course of action, and when they are maintained in the regular course of the
Division's business").
A-2062-18T4
20
Dr. D'Urso to lay the foundation for the report's admissibility under the business

records exception. Dr. D'Urso testified as follows concerning the process for

preparing Dr. Coco's report:

Q: [T]his was an evaluation prepared by your team. Is
that correct?

A: Correct.

Q: And when it comes to the team philosophy that you
indicated the psycho-social evaluations, is it similar to
– is that process similar when you do parenting
evaluations for individuals?

A: yes, it applies to every family member.

Q: [D]oes your team typically prepare a written report
following the parenting evaluation for your signature to
review?

A: Oh yes.

We are constrained to conclude this scant testimony was inadequate to

establish Dr. Coco's report as a business record within the meaning of N.J.R.E.

803(c)(6). While Dr. D'Urso's testimony may tend to show that AHCH regularly

produces expert reports in a trustworthy manner, his testimony did not establish

that the report was "made at or near the time of observation" as required by

N.J.R.E. 803(6)(c). The report itself indicates Dr. Coco interviewed defendant

on August 11, 2017. It also indicates the report was not completed until

December 7, 2017. That completion date is consistent with Dr. D'Urso's
A-2062-18T4
21
testimony that Dr. Coco's report "went out in December." The record before us

thus shows there was a four-month gap period between the time when defendant

made her admissions to Dr. Coco and the date when Dr. Coco issued his report.

We are mindful that the process of clinically evaluating a parent suspected

of abuse or neglect is a deliberative one. Even so, we do not believe a report

completed four months after an interview qualifies as one made "within a short

time of the events described in it." Kuropchak, 221 N.J. at 388 (citing

Matulewicz, 101 N.J. at 29).

We reach this conclusion based solely on the limited record before us. A

more fulsome record regarding the report's preparation might have led us to a

different conclusion. We appreciate, for example, that Dr. Coco likely based his

report on notes he took contemporaneously with defendant's evaluation.

However, the Division did not elicit testimony concerning Dr. Coco's note -

taking practices. Cf. State v. P.S., 202 N.J. 232, 254 (2010) (holding that a

caseworker's report of an interview with a child victim was sufficiently

trustworthy under N.J.R.E. 803(c)(27) when the notes were taken

contemporaneous with the interview and the caseworker testified her report

reflected the content of her notes). We therefore are constrained to conclude the

trial court erred in admitting Dr. Coco's report for the purpose of corroborating

M.D.C.'s statement.
A-2062-18T4
22
 B.

We turn next to defendant's contention that the trial court should not have

considered defendant's admissions to Crespo because the Division caseworker

violated defendant's Fifth Amendment rights. Defendant argues Crespo was

required to administer Miranda warnings before interviewing defendant at

Palisades Medical Center. She further contends Crespo failed to scrupulously

honor defendant's prior invocation of her right to remain silent when Crespo

interviewed defendant at Christ Hospital. See Michigan v. Mosley, 423 U.S. 96,

104 (1975) (requiring police to "scrupulously honor[]" a defendant's invocation

of his or her right to remain silent); State v. Harvey, 151 N.J. 117, 221 (1997)

(following Mosley); see also State v. Hartley, 103 N.J. 252, 278–79 (1986)

(concluding that failure by police to re-administer Miranda warnings before

interrogating an accused who has previously invoked the right to remain silent

constitutes a failure to scrupulously honor the assertion).

Defendant contends that for all practical purposes, she was in custody

when she was interviewed by Crespo at Palisades Medical Center and at Christ

Hospital. She also contends that Crespo was acting in cooperation and

consultation with detectives in the Prosecutors Office. We need not decide,

however, whether the circumstances of the interviews at Palisades Medical

Center and later at Christ Hospital were sufficiently coercive as to be tantamount
A-2062-18T4
23
to custodial interrogation requiring administration of Miranda warnings. Cf.

State v. P.Z., 152 N.J. 86, 103, 121 (1997) (noting on the facts of that case that

"none of the indicia of coercion were present" and holding the Division

caseworker was not required to give Miranda warnings to parent prior to non-

custodial interview concerning child abuse or neglect); see also State v. Helewa,

223 N.J. Super. 40, 51–52 (App. Div. 1988) (equating Division caseworker to a

law enforcement officer and requiring the caseworker to administer Miranda

warnings to a parent who was arrested and confined during interview); State v.

Flower, 224 N.J. Super. 208, 220 (Law Div. 1987), aff'd, 224 N.J. Super. 90

(App. Div. 1988) (suppressing a confession a defendant made to a Division

investigator because the investigator failed to inform the defendant of his

Miranda rights). Nor do we need to decide whether Crespo violated defendant's

Fifth Amendment rights when she re-interviewed defendant at Christ Hospital

after being advised that defendant had invoked her right to remain silent when

questioned by police earlier that night at SVU headquarters. 8

8
We express no opinion on whether in the circumstances of this case Crespo
was required to provide Miranda warnings to defendant before interviewing her
at Palisades Medical Center, or before re-interviewing her at Christ Hospital.
Nor do we express an opinion on whether the caseworker's interview at Christ
Hospital was barred by defendant's assertion of the right to remain silent when
an SVU detective attempted to take a statement from her earlier that night. We
note only that the admission defendant made to the Division caseworker at the
A-2062-18T4
24
 We choose not to decide whether Crespo violated defendant's Fifth

Amendment rights under Miranda and Mosley because ultimately, defendant's

argument rests on a faulty premise. She assumes that the exclusionary rule that

applies in criminal cases applies as well to a Title Nine fact-finding hearing.

Defendant cites no authority, however, to support that proposition. Even

assuming for purposes of argument that any or all of defendant's admissions to

Crespo would be subject to suppression in a criminal trial, we would decline to

extend the exclusionary remedy to the Title Nine fact-finding hearing. The

purpose of a hearing under N.J.S.A. 9:6-8.44 is not to prosecute or to punish.

Rather, its purpose is to gather facts with which a court can fashion orders to

protect a specific child from future harm. We note that in this instance, the

Court's finding of abuse or neglect led to interventions and services that resulted

in re-unification so that today, defendant enjoys legal and physical custody of

M.D.C.

It is well-established that a person invoking the Fifth Amendment

privilege against self-incrimination may do so "in any . . . proceeding, civil or

criminal, . . . where the answers might tend to incriminate him [or her] in future

initial interview at Palisades Medical Center, when considered in conjunction
with other evidence presented at the fact-finding hearing, would have been
sufficient to corroborate M.D.C.'s statement that defendant was told about the
abuse.
A-2062-18T4
25
criminal proceedings." P.Z., 152 N.J. at 101 (citations omitted). That does not

mean, however, the suppression remedy designed to redress constitutional

violations in any such future criminal proceeding applies as well in civil

proceedings. We do not mean to suggest that a Title Nine finding of abuse or

neglect against a parent does not carry significant consequences, including

enrollment in a central registry. See N.J. Div. of Child Prot. & Permanency v.

E.D.-O., 223 N.J. 166, 195 (2015) (noting the consequence of enrollment i n a

registry upon a finding of abuse or neglect (citing N.J.S.A. 9:6-8.11)). Nor do

we disagree with defendant that Title Nine fact-finding hearings "must be

conducted with 'scrupulous adherence to procedural safeguards." N.J. Div. of

Youth & Family Servs. v. G.M., 198 N.J. 382, 401 (2009) (quoting N.J. Div. of

Youth & Family Servs. v. A.R.G., 179 N.J. 264, 286 (2004)). Those hearings

nonetheless remain civil in nature and do not automatically incorporate all of

the procedural safeguards and remedies afforded to the accused in a criminal

prosecution. Cf. In re Guardianship of Dotson, 72 N.J. 112, 118 (1976) (noting

that while denominated as a civil matter, a Title 30 guardianship case "is almost

quasi-criminal in nature, since it seeks to terminate for cause all parental ties

between the children here involved and their natural parents").

We add that defendant's reliance on our recent decision in New Jersey

Division of Child Protection and Permanency v. S.K., 456 N.J. Super. 245 (App.
A-2062-18T4
26
Div. 2018), is misplaced. In that case, the trial court convened a Title Nine fact-

finding hearing to address the charge of child sexual abuse under N.J.S.A. 9:6 -

8.21(c)(3). At the time of the hearing, the defendant was being held at the

Camden County Jail pending disposition of various criminal charges arising

from his alleged sexual misconduct. Id. at 250–51, 271. The Division called

S.K. as a witness at the fact-finding hearing to corroborate his daughter's

allegations against him. On the advice of his attorney, S.K. invoked his right

against self-incrimination and refused to testify at the hearing. Id. at 251.

The judge drew an adverse inference from the defendant's exercise of his

right against self-incrimination and then relied on that adverse inference "as

substantive evidence to corroborate [the child's] allegations of sexual abuse."

Ibid. Indeed, the adverse inference drawn from S.K.'s assertion of the right

against self-incrimination at the hearing was the only "substantive evidence"

presented by the Division to satisfy the statutory corroboration requirement. Id.

at 272. We reversed the trial court's abuse finding, holding that "a Family Part

Judge may not draw an adverse inference of culpability against a defendant who

invokes his right against self-incrimination to testify at a Title [Nine] fact-

finding hearing." Id. at 251.

The circumstances in the case now before us are markedly different from

those presented in S.K. The Division did not call defendant as a witness at the
A-2062-18T4
27
Title Nine fact-finding hearing to corroborate her daughter's statement. The

hearing court in this case drew no adverse inference from defendant's election

not to testify. Thus, in sharp contrast to the situation in S.K., defendant's

exercise of her right against self-incrimination was not the basis for the hearing

court's corroboration finding. Rather, corroboration of M.D.C.'s statement was

achieved by the introduction of defendant's admission to Crespo that M.D.C.

had told her about the sexual abuse. Crespo's testimony concerning defendant's

admissions to her was admissible under the Rules of Evidence. Accordingly,

defendant's argument can prevail only if her admissions to Crespo were found

to be inadmissible for some reason other than application of the evidence rules.

That brings us back full circle to the exclusionary rule. We reiterate that

the remedy defendant seeks—to suppress defendant's admissions to Crespo as

the fruit of unlawful interrogations—necessarily presupposes that the

exclusionary rule that applies in a criminal trial applies as well to a Title Nine

fact-finding hearing. We deem it especially noteworthy that defendant cites no

precedent that applies the exclusionary rule to a Title Nine hearing, or, for that

matter, to any non-criminal proceeding.

We note in this regard that Rule 5:12-6(b) contemplates the sharing of law

enforcement information with the Division when there is a criminal

investigation of an incident that is the basis of a Division action brought
A-2062-18T4
28
pursuant to Rule 5:12. This feature is intended to ensure appropriate access by

the Division to the relevant information in the hands of the prosecutor. Pressler

& Verniero, Current N.J. Court Rules, cmt. 1.7 on R. 5:12-7 (2020). We

presume that over the span of years, law enforcement and prosecuting agencies

across the State have shared a considerable amount of information with the

Division. It is conceivable that at least some law enforcement information

shared with the Division would have been deemed inadmissible in a companion

criminal case by reason of the manner in which that information had been

obtained by law enforcement. In these circumstances, the dearth of case law

applying the exclusionary rule to a Family Part action under Rule 5:12 is telling.

We note finally there is no counterpart in civil or Family Part practice—

other than juvenile delinquency proceedings—for a formal motion to suppress

evidence and the resulting hearing. Cf. R. 3:5-7 (setting forth procedural rules

for motions to suppress evidence in the Criminal Part). Defendants often testify

at preliminary hearings in criminal cases to offer their account of the

interrogation process, knowing that such testimony concerning the lawfulness

of an interrogation does not expose them to cross-examination on other issues.

A-2062-18T4
29
N.J.R.E. 104 (c), (d). 9 We presume the lack of explicit guidance provided by

court rule or evidence rule in civil matters reflects the novelty of defendant's

proposal to invoke the suppression remedy.

In this instance, moreover, the hearing court did not have the benefit of

briefs and focused legal argument on fact-sensitive Miranda-related issues as

would be expected in a criminal matter. See supra note 5. As a result, the facts

needed to resolve the Fifth Amendment issues defendant raises on appeal were

not fully developed at the Title Nine hearing. Were it necessary for us to address

those issues on their substantive merit, we would not exercise original

jurisdiction to expand the record. See State v. Micelli, 215 N.J. 284, 293 (2013)

(noting that Rule 2:10-5 "allow[s] [an] appellate court to exercise original

jurisdiction to eliminate unnecessary further litigation, but discourage[es] [sic]

its use if factfinding is involved" (quoting State v. Santos, 210 N.J. 129, 142

(2012))).

9
N.J.R.E. 104(c) provides in pertinent part, "[w]here by virtue of any rule or
law a judge is required in a criminal action to make a preliminary determination
as to the admissibility of a statement by the defendant, the judge shall hear and
determine the question of its admissibility out of the presence of the jury."
(emphasis added). N.J.R.E. 104 (d) further provides that, "[b]y testifying upon
a preliminary matter, the accused does not become subject to cross-examination
as to other issues in the case."
A-2062-18T4
30
 Rather, we would remand for further findings of fact and law concerning,

for example, whether defendant was essentially in custody during either or both

the interview at Palisades Medical Center and the interview at Christ Hospital,

and whether the Division caseworker was acting at the direction of the

Prosecutor's Office. Such a remand is not necessary given our conclusion that

in any event, defendant's admissions to the Division caseworker would not be

subject to exclusion from the Title Nine fact-finding hearing on the basis of the

manner in which the interviews were conducted.

V.

In sum, in the absence of precedential authority to support defendant's

novel argument, we decline to extend the reach of the exclusionary rule to the

fact-finding hearing that was conducted in this case. We therefore reject

defendant's contention that the hearing court erred by admitting into evidence

and relying on defendant's statements to Crespo. Together with M.D.C.'s

statements and other competent evidence adduced at the hearing, defendant's

admissions to Crespo support the trial court's conclusion that defendant abused

or neglected her daughter by failing to exercise a minimum degree of care in

protecting her from continuing sexual abuse by her stepfather. N.J.S.A. 9:6-

8.21(c)(4)(b). The trial court's error in also relying on defendant's statements

memorialized in Dr. Coco's report is harmless because those statements were
A-2062-18T4
31
merely cumulative of the statements she gave to Crespo. The error in admitting

Dr. D'Urso's hearsay testimony, in other words, did not lead to a result that the

hearing court would not otherwise have reached. Neno, 167 N.J. at 587 (citing

Hightower, 120 N.J. at 410); see also Hightower, 120 N.J. at 410 ("For a hearsay

error to mandate reversal, '[t]he possibility [of an unjust verdict] must be real,

one sufficient to raise a reasonable doubt as to whether the error led the jury to

a result it otherwise might not have reached.'" (alterations in original) (quoting

State v. Bankston, 63 N.J. 263, 273 (1973))).

To the extent we have not already addressed them, any additional

arguments defendant raises on appeal lack sufficient merit to warrant discussion

in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-2062-18T4
32