Dcpp v. E.T., in the Matter of L.T. and K.M.

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NOT FOR PUBLICATION WITHOUT THE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-4004-21

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

v.

E.T. and R.H.,

Defendants,

and

R.E.T.,

Defendant-Appellant.
__________________________

IN THE MATTER OF L.T. and
K.M., minors.
___________________________

Submitted December 20, 2023 – Decided March 25, 2024

Before Judges Accurso, Gummer and Walcott-
Henderson.
 On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FN-04-0181-21.

Joseph E. Krakora, Public Defender, attorney for
appellant (David Anthony Gies, Designated Counsel,
on the briefs).

Matthew J. Platkin, Attorney General, attorney for
respondent (Sookie Bae-Park, Assistant Attorney
General, of counsel; Mary L. Harpster, Deputy
Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor K.M. (Meredith Alexis Pollock,
Deputy Public Defender, of counsel; Neha Gogate,
Assistant Deputy Public Defender, of counsel and on
the brief).

PER CURIAM

Defendant R.E.T. appeals from the Family Part's February 11, 2022 order,

now final, that defendant abused and neglected his then fifteen-year-old

stepdaughter Kyra in violation of N.J.S.A. 9:6-8.21(c)(3) by engaging in acts of

sexual abuse.1 Because we conclude there is substantial credible evidence in the

record to support the court's finding, we affirm.

1
Consistent with the names used by the parties in their briefs, parties' fictitious
names are used here for clarity and confidentiality to protect the anonymity of
the children. R. 1:38-3(d)(12).

A-4004-21
2
 I.

In August 2020, when Kyra was fifteen years old, she disclosed to her best

friend, Ellen, that defendant had been sexually abusing her since the age of ten.

Ellen told Kyra's mother, Elsa, about Kyra's allegations.

According to Elsa, she asked Kyra about the allegations the next day and

Kyra started cursing and yelling at her. Elsa also stated that she had called

Kyra's care management organization (CMO) team to inform them about what

Kyra had said.2 Kyra's behavioral therapist and psychiatrist went to the home

to meet with Elsa and Kyra about the allegations of abuse. Kyra told them she

wanted to hurt herself; they advised Elsa to take her to the hospital.

Kyra's CMO team referred the matter to the Division. Crawley

interviewed Elsa at the hospital. Elsa told him Kyra had an extensive mental-

health history; specifically, that she had been seeing therapists and had been

with a CMO team since the age of nine or ten. Elsa also reported that Kyra had

been diagnosed with bipolar disorder, anxiety, intermittent explosive disorder,

post-traumatic stress disorder (PTSD), oppositional defiant disorder and

2
According to William Crawley, an investigator with New Jersey Division of
Child Protection and Permanency (Division or DCPP), Elsa indicated Kyra
worked with a CMO worker, a behavioral therapist, a psychiatrist, and a
psychologist. Elsa referred to them as Kyra's "CMO team."

A-4004-21
3
attention-deficit/hyperactivity disorder (ADHD) and had been prescribed

various medications. She further explained Kyra had a history of behavioral

problems at home and at school including lying, stealing, and defiance.

After speaking with Elsa, Crawley spoke with Kyra in her hospital room.

Kyra stated that she had "told her best friend that her stepfather 'raped her' [two

and a half] months ago and it's been happening since [she] was [ten]." Crawley

reported Kyra's abuse allegations to the Camden County Prosecutor's Office -

Special Victim's Unit Detective Cody Skinner.

The next day, Detective Skinner interviewed Kyra, who disclosed details

of the sexual abuse.3 She elaborated on an incident of sexual abuse that had

occurred about two and a half months prior while Elsa and Kyra's younger sister

"were at dance [class]" and she was home alone with defendant:

He took my clothes off and told me to take my clothes
off too. His penis was hard. After I took my clothes
off, he had sex with me, and I just laid there. I did not
know what to do. After he had sex with me, he would
take a shower and take me to Wendy's to eat.

On that occasion, Kyra stated defendant "put his penis in [her], and it

lasted for a few minutes" and that "[n]ormally he would finish . . . [o]n [her]

3
A recording of Detective Skinner's interview was transcribed into the
Division's investigation report.
A-4004-21
4
back and stomach." She explained to Detective Skinner she did not "remember

exactly" the first time defendant had sexually abused her but recalled the abuse

had begun when the family, including defendant, lived at Kyra's maternal

grandmother's home for two to three years. She explained that on a different

occasion that when she was fourteen-years old, defendant had come home after

working the night shift, "woke [her] up and . . . turned [her] over[,] took [her]

clothes off and had sex with [her]." She also disclosed that "[h]e made [her]

grab his penis and move his hand how he wanted [her] to move it," but that "he

made [her] stop jerking him off when [she] was [ten to thirteen] years old." She

stated she believed he had made her have sex with him "[thirty to forty]

times . . ." and "[i]t would he in his room when [her] mother and sister were not

home [and] [h]e used to hit [her] at [fourteen] and [Elsa] would tell him to stop."

She recalled defendant "would slap her in the face . . . [and] [h]e would hit [her]

from [twelve to fourteen] years old." Defendant would tell Kyra "not to tell

[her] mother [and] [h]e would bribe [her] with money when [she] was younger."

She explained that the abuse would happen when Elsa and her sister went to

dance on "Wednesday[s] and Mondays" but also "when he would come home at

night after working the night shift." She also stated that "he took a picture of

A-4004-21
5
[her] lying there one time when [she] was ten at the apartment on Central

Ave[nue]" with her clothes off and then "had sex with [her]" after.

The Division filed a complaint for abuse and neglect against defendant

and Elsa, alleging defendant had sexually abused Kyra and seeking to assume

her custody, care and supervision.

Months later, the matter proceeded to a fact-finding hearing. The Division

presented two witnesses, Kyra and Stephanie V. Lanese, M.D., and entered three

exhibits into evidence without objection: (1) Crawley's investigation report, (2)

Dr. Lanese's curriculum vitae and (3) Dr. Lanese's New Jersey CARES report.4

Defendant testified and called Kyra's maternal aunt as a witness. The

parties also stipulated to the entry of the Division’s investigative report,

obviating the need for investigator Crawley to testify.

At the hearing, Kyra testified that defendant had begun sexually abusing

her when she was about nine or ten years old, when the family lived with her

maternal grandmother and that defendant "had been raping [her] for five years"

by the time she finally reported the abuse to Ellen. She also testified that she

had disclosed the details of defendant's ongoing sexual abuse to Ellen because

4
CARES is an acronym for Child Abuse Research Education and Service
Institute.

A-4004-21
6
she believed that her mother and sister would be going out that same evening,

leaving her at home alone with defendant. According to Kyra, as she had done

many times in the past, she asked Ellen to spend the night at her home and when

Ellen did not initially agree to sleep over, she confided the details of defendant's

ongoing sexual abuse. Kyra testified she had told Ellen about the abuse because

"she felt very comfortable with her" and that after she told her what defendant

had been doing to her, they both started crying.

Kyra testified the abuse would start by defendant asking her "if [she]

wanted to play" and that she came to learn what "play" meant because defendant

"would force [her] until eventually [she] put two and two together." She

described the abuse in detail, stating it would typically occur when her mother

was at work, her mother and younger sister were at dance, or when she was left

at home alone with defendant. Kyra also recounted that defendant would

undress himself and her and "position [her] how he wanted," and "put his penis

in [her] vagina," and that she was also "force[d]" to perform oral sex. She stated

defendant would stop when someone came home or he would "finish on [her]

back . . . or stomach." She also testified defendant had told her to keep the abuse

A-4004-21
7
a "secret" from her mother. 5 In describing where the abuse took place, Kyra

testified defendant would force her to have sex with him usually in the bedroom

he shared with her mother, her bedroom, or the basement.

Dr. Lanese testified that her initial evaluation of Kyra occurred via

telemedicine because of the COVID-19 pandemic protocols, but that she had

examined Kyra in-person the following day.6 She testified Kyra had told her

defendant "would undress her completely, undress himself, and position her

however he wanted, and put his penis in her vagina and then when he finished,

he finished on her back or stomach." Kyra also described feeling "hurt and used

but she denied having any physical problems." Dr. Lanese testified Kyra had

told her that "some of this interaction started when she was ten and had been

ongoing for the past five years." When asked about Kyra's "delayed disclosure,"

Dr. Lanese explained it was "quite common" for children to delay reporting

sexual abuse for "multiple reasons" and further explained that:

most children tell me they were scared to tell. They
were afraid of what would happen once they told, the
consequences of telling. A lot of children are afraid
they're going to get in trouble, especially when they're

5
Elsa denies knowing about the abuse, and nothing in the record suggests that
Kyra had told her mother about the abuse prior to her disclosure to Ellen.
6
At the start of the hearing, all parties stipulated to Dr. Lanese's qualification
as an expert in pediatrics and child abuse.
A-4004-21
8
 younger because they feel like they participated in the
act and that they hold some of the blame. Some of them
have been threatened. So some children don't want to
tell until they feel like they're safe.

...

Sometimes, they just won't think they're going to be
believed and sometimes they're just so ashamed of what
happened to them that they don't want to tell anyone.

When asked to address Kyra's behavioral issues, Dr. Lanese explained that

children often do not know how to describe or understand what happened to

them, and this uncertainty can manifest as aggression, anxiety, and anger. She

reiterated that a child’s reaction to the trauma can present similarly to ADHD

and may be misdiagnosed.

On cross examination, defense counsel challenged her diagnostic

assessment based on the fact that Kyra had not allowed an examination of her

genitalia. Dr. Lanese responded that a genital exam would not necessarily

provide any physical evidence of abuse because bodies accommodate sexual acts

and injuries, if they occur, can heal. She further explained the lack of physical

evidence was not dispositive because Kyra had provided an extensive history of

her abuse and it was not uncommon for doctors to make diagnoses based on

history alone without any physical findings. Dr. Lanese used the example of a

A-4004-21
9
patient who complains of a headache and a doctor's diagnosis thereof to illustrate

that no physical evidence is necessary in some cases.

In his testimony, defendant denied all allegations of abuse. He testified

that he had been in Kyra's life since she was three years old and that Kyra started

calling him "daddy" about a year after he and Elsa had been together. Despite

acknowledging that Kyra was an excellent student and was involved in several

extracurricular activities, defendant focused on Kyra's behavioral issues that he

said had begun in preschool and escalated as she got older.

He testified that when she was about eight-years old, Kyra's behavior was

so concerning that he and Elsa sought out family services from CMO. He also

testified that Kyra had begun misbehaving more frequently during the summer

of 2020—when Kyra was fifteen—which he attributed to his belief that she was

no longer taking her medications.

Defendant further testified that around August 2020, he and Elsa had taken

away Kyra's phone and revoked her social-media privileges as punishment for

her poor behavior. He discussed gaining access to her cell phone and finding

Kyra had posted videos and naked pictures of herself and was talking about

multiple sex partners on social media. Defendant maintains that Kyra made up

A-4004-21
10
the allegations of sexual abuse against him as retribution for punishing her for

her behavior, including taking away her phone.

At the close of the hearing, the judge rendered a decision from the bench,

finding the Division had proved by a preponderance of the evidence that Kyra

was an abused and neglected child pursuant to N.J.S.A. 9:6- 8.21(c)(3) because

defendant had sexually abused her. Regarding Dr. Lanese's testimony, the judge

recounted the details of the abuse as described in Dr. Lanese's report and

concluded Dr. Lanese’s testimony was consistent with her report and helpful in

understanding Kyra's overall behavioral issues and her delay in disclosing the

abuse.

The judge acknowledged the case turned on the credibility of the

witnesses—Kyra and defendant—given their divergent testimony, stating:

I think overall what I’m gathering from the defense’s
standpoint is the defense would have this [c]ourt
believe that [Kyra] is not telling the truth and that she’s
making up these allegations as retaliation against her
parents for punishing her or taking her phone away or
as another way of her acting out of her mental health
disorders such as her Oppositional Defiance Disorder,
bipolar, anxiety, ADHD[.]

However, the judge did not believe Kyra had lied about the abuse "because she

was mad at her parents for taking away her phone or that she wanted to live with

her grandparents."

A-4004-21
11
 The judge also addressed Kyra's diagnosed mental-health disorders and

noted that based on the testimony and evidence, there was no dispute Kyra had

had emotional and behavioral issues throughout most of her life for which she

had received various forms of treatment. The judge found Kyra had testified

credibly, stating:

In my opinion, it makes sense based upon Dr. Lanese’s
testimony that [Kyra] did delay this disclosure. It
makes sense that she told her best friend because
according to [Kyra] she knew that [Ellen] would tell
[Kyra's mother], and she admitted that she and her
mother had a rocky relationship in the summer of 2020
and so [Kyra] most likely knew that her mother
wouldn’t believe her. And [Kyra] was right, her mother
did not believe her. And her grandmother did not
believe her at first. . . so I find [Kyra's] testimony to be
credible. Although she had somewhat of a flat affect,
she answered all questions directly on direct as well as
cross-examination. I find that her demeanor based
upon my observations [was] the same on direct as well
as on cross. I think she was appropriately upset when
she was answering questions about what was found by
her parents on her phone in August of 2020.

In contrast, the judge did not find defendant's arguments and explanations

credible or believable. She found "a distinct difference in his demeanor on

cross-examination than on direct examination" and that his testimony "actually

corroborate[d] some of [Kyra's] testimony with respect to overnights and [her]

new friendship [with Ellen.]" The judge also opined that some of defendant's

A-4004-21
12
behavior "seemed a little bit odd" and found defendant combative when he

testified about the Division's investigator "pestering [him]." She also stated his

combative demeanor on cross-examination "led [her] to believe that he was not

telling the truth."

On February 11, 2022, the judge entered an order in which she found, by

a preponderance of the evidence, R.E.T. had abused and neglected Kyra

pursuant to N.J.S.A. 9:6-8.21(c). In a July 15, 2022 order, the judge terminated

the litigation, awarded joint legal custody of Kyra to Elsa and Kyra's father and

physical custody of Kyra to her father and barred defendant from having contact

with Kyra.

Defendant raises the following issues for our consideration in this appeal.

POINT I

THE FAMILY COURT JUDGE’S SINGULAR
FOCUS ON THE DCPP EXPERT’S OPINION
REGARDING THE CHILD’S DELAYED
DISCLOSURE IMPROPERLY INFLUENCED THE
COURT’S EVALUATION OF THE IMPLICATIONS
TO BE DRAWN FROM THE TOTALITY OF THE
EVIDENCE.

POINT II

THE DCCP EXPERT'S DIAGNOSIS WAS A "NET
OPINION" BECAUSE SHE DID NOT EXPLAIN
HOW SHE DISTINGUISHED BETWEEN TRAUMA
AND A MENTAL HEALTH DISORDER. (Not Raised

A-4004-21
13
 Below)

POINT III

[DEFENDANT'S] TRIAL ATTORNEY RENDERED
A CONSTITUTIONALLY INEFFECTIVE
PERFORMANCE AS LEGAL COUNSEL WHERE
HE DID NOT OBJECT TO THE DCPP EXPERT'S
NET OPINION. (Not Raised Below)

II.

Review of a family court's findings of fact is limited. N.J. Div. of Youth

& Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008). The

reviewing court must determine whether the findings are supported by adequate,

substantial, credible evidence. Ibid. Deference is afforded to a trial court's

credibility determinations because the trial court had the ability to observe the

demeanor, tone, and physical actions of all the witnesses during the hearing.

N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279, 293 (2007)

(citing State v. Johnson, 42 N.J. 146, 161 (1964)). The factual findings will not

be disturbed unless the findings go "'so wide of the mark that a mistake must

have been made.'" Ibid. (quoting Pioneer Nat'l Title Ins. Co. v. Lucas, 155 N.J.

Super. 332, 338 (App Div. 1978)).

Under Title Nine, an "abused or neglected child" means a child less than

eighteen years of age whose parent or guardian:

A-4004-21
14
 (1) inflicts or allows to be inflicted upon such child
physical injury by other than accidental means which
causes or creates a substantial risk of death, or serious
or protracted disfigurement, or protracted impairment
of physical or emotional health or protracted loss or
impairment of the function of any bodily organ; (2)
creates or allows to be created a substantial or ongoing
risk of physical injury to such child by other than
accidental means which would be likely to cause death
or serious or protracted loss or impairment of the
function of any bodily organ; (3) commits or allows to
be committed an act of sexual abuse against the child;
(4) or a child whose physical, mental, or emotional
condition has been impaired or is in imminent danger
of becoming impaired as the result of the failure of his
parent or guardian, as herein defined, to exercise a
minimum degree of care (b) in providing the child with
proper supervision or guardianship, by unreasonably
inflicting or allowing to be inflicted harm, or
substantial risk thereof, including the infliction of
excessive corporal punishment; or by any other acts of
a similarly serious nature requiring the aid of the court.

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

The Division must prove abuse or neglect of a child by a preponderance

of the evidence. N.J.S.A. 9:6-8.46(b). Prima facie evidence that a child has

been abused or neglected includes: "proof of injuries sustained by a child or of

the condition of a child of such nature as would ordinarily not be sustained or

exist except by reason of the acts or omissions of the parents or guardian."

N.J.S.A. 9:6-8.46(a)(2). Proofs must be evaluated based on the totality of the

A-4004-21
15
circumstances "because the evidence can be synergistically related." N.J. Div.

of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 39 (2011).

Ordinarily, a child's out-of-court statements "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). Corroboration requires "direct or

circumstantial evidence beyond the child's statement itself." Critically,

however, in New Jersey Division of Child Protection & Permanency v. Y.A., we

held "the corroboration requirement of the statute does not apply where the child

victim testifies to the abuse at a fact-finding hearing." 437 N.J. Super. 541, 542

(App. Div. 2013).

Defendant argues the judge erred by relying on Kyra's "material

inconsistencies between her Zoom testimony and DCPP's investigation

summary" and asserts "Dr. Lanese's written report did not corroborate the

teenager's testimony either." He also contends Kyra fabricated the claims of

sexual abuse and was motivated by animus and revenge for discipline defendant

had imposed as a consequence for her inappropriate posts on social media.

Alternatively, he suggests the claims are the result of her ongoing psychological

issues. In support of these contentions, defendant points to Kyra's psychological

A-4004-21
16
and behavioral challenges exhibited throughout her childhood. He maintains

that she is not to be believed and argues that the judge's singular focus on the

Division's expert's opinion regarding Kyra's delayed disclosure improperly

influenced the court's evaluation of the implications to be drawn from the totality

of the evidence.

Defendant further argues the Division's expert's report constitutes a net

opinion because Dr. Lanese did not explain how she distinguished between

trauma and a mental-health disorder. Lastly, defendant claims trial counsel was

ineffective for failing to object to Dr. Lanese's testimony and report.

The judge issued a comprehensive and thorough opinion finding Kyra's

testimony more credible and believable than defendant's, stating she found

Kyra's live testimony consistent with the Division's investigation report and Dr.

Lanese's report. She specifically referred to Kyra's disclosure to her best friend

Ellen. The judge also relied on Dr. Lanese’s explanation of why children delay

disclosing abuse. On this point, the judge found "it was not unusual for her not

to tell these healthcare providers during the five years that this was going on

because she did not feel comfortable telling them and she was only ten years old

when it started."

A-4004-21
17
 The judge also found "the manner of [Kyra's] disclosure . . . all ma[de]

sense to [her.]" She further acknowledged the possibility, based on her review

of the evidence and testimony, that "one of the reasons why she didn’t say

anything [was] because she had a bad relationship with her mother in particular

the summer of 2020," around the time of the disclosure to her best friend. 7

Contrary to defendant's arguments, the judge considered Kyra's history of

psychological issues when she stated "the defense would have this [c]ourt

believe that [Kyra] is not telling the truth and that she's making up these

allegations as retaliation against her parents for punishing her or taking her

phone away or as another way of her acting out of her mental health disorders

such as her Oppositional Defiance Disorder, bipolar, anxiety, ADHD . . . ."

Critically, however, the judge did not find defendant's arguments and

explanations credible or believable. She found his demeanor during cross-

examination was combative, and that his testimony corroborated Kyra's

testimony as to her friendship with Ellen and the overnight stays.

7
Moreover, the judge's findings were clearly based on her view of Kyra's
testimony detailing the acts of sexual abuse, statements which did not require
corroboration to support a finding of abuse against defendant. See Y.A., 437
N.J. Super. at 542.

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18
 We are also persuaded that the judge correctly considered evidence of

Kyra's psychological and mental-health diagnoses in the context of her findings

as to Kyra's behavior given Dr. Lanese's explanation that "it could seem like a

child is suffering from mental health issues but it's really the trauma." We

further recognize that because allegations of sexual abuse involve conduct that

is deeply personal and offensive, and generally shrouded in secrecy—rarely

involving witnesses—courts are ultimately tasked with deciding these cases

based on the credibility of those directly involved—the alleged perpetrator and

victim. Such was the case here; where Kyra alleged conduct that took place

when she was at home alone with defendant or late at night and for which there

were no witnesses.

On hearing the evidence, the judge correctly based her decision on the

testimony and evidence presented and decided whom to believe based on their

testimony—what made sense, what was believable and observations of each

witness's demeanor. M.M., 189 N.J. at 293. In doing so, she concluded, based

on testimony she found more credible than defendant's denials, that defendant

had sexually abused Kyra.

On this basis, we discern no error in the judge's findings and opinion. As

previously stated, our review of the family court's findings of fact is limited,

A-4004-21
19
I.Y.A., 400 N.J. Super. at 89, and the court's findings will be upheld where there

is adequate, substantial, credible evidence in the record to support those

findings. Defendant's alternative theories and his efforts to discredit Kyra's

testimony are unavailing as there is a sufficient basis to uphold the judge's

findings based on the detailed testimony presented by Kyra, which the judge

found to be credible. The judge "ha[d] the opportunity to make first-hand

credibility judgments about the witnesses who appear[ed] on the stand; [and

had] a feel of the case that can never be realized by a review of the cold record."

N.J. Div. of Youth and Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008). Moreover,

as previously stated, we have long recognized "[b]ecause of the family courts'

special jurisdiction and expertise in family matters, appellate courts should

accord deference to family court factfinding," and the conclusions that flow

logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413

(1998). Against this backdrop, we discern no basis to disturb the judge's

decision.

Defendant's argument that Dr. Lanese's testimony constituted an

impermissible net opinion because she failed to explain how she distinguished

between trauma and a mental-health disorder is undermined by the trial record.

The net opinion rule "requires that an expert '"give the why and wherefore" that

A-4004-21
20
supports the opinion, "rather than a mere conclusion."'" Townsend v. Pierre,

221 N.J. 36, 54 (2015) (quoting Borough of Saddle River v. 66 E. Allendale,

LLC, 216 N.J. 115, 144 (2013) (quoting Pomerantz Paper Corp. v. New Cmty.

Corp., 207 N.J. 344, 327 (2011))). "The rule . . . mandates that experts 'be able

to identify the factual bases for their conclusions, explain their methodology,

and demonstrate that both the factual bases and the methodology are reliable.'"

Id. at 55 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)).

Our review of Dr. Lanese's report and testimony reveals the details of her

discussion with Kyra regarding the sexual abuse, her opinion regarding why

some victims of assault delay disclosure, and the recommendation that Kyra

seek a mental-health professional for trauma-based counseling "because she

experienced a trauma." As we explained in New Jersey Division of Child

Protection and Permanency v. I.B., 441 N.J. Super 585, 589-91 (App. Div.

2015), the type of "psychological evidence of emotional effects," as discussed

by Dr. Lanese, is "routinely admitted in Title Nine cases" and "admissible as

substantive evidence to corroborate the child's allegations of abuse ." See N.J.

Div. of Youth and Fam. Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div.

2002).

A-4004-21
21
 Contrary to defendant's claims, Dr. Lanese explicitly discussed the

relationship between trauma from the sexual abuse and mental-health disorders

and explained "if you have a child who has some mental health issue to begin

with, it [the abuse] can exacerbate those mental health issues." And, in response

to a question about whether it could seem like a child is suffering from mental

health issues but it's really the trauma, Dr. Lanese responded "[a]ctually yes.

We have, several children that it's really PTSD, it's from the trauma, but they

present similar to ADHD. So they are hyperactive."

Dr. Lanese further discussed her recommendation that Kyra see a mental-

health professional "to evaluate the full extent of her disclosures for her

statements" and recommended that they be trauma-based because in her opinion,

"she [Kyra] experienced a trauma." Moreover, on cross-examination, when

asked about Kyra's history of bipolar disorder, Dr. Lanese responded, "I am not

negating her history of bipolar disorder." Rather than providing a "mere

conclusion," as argued by defendant, Dr. Lanese "gave the why and wherefore"

supporting her opinion, Townsend, 221 N.J. at 55 (internal quotations omitted),

and "offer[ed] objective support [grounded in the evidentiary record] for . . . her

opinions," Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 410 (2014)

(quoting Pomerantz Paper Corp., 207 N.J. at 373). Thus, Dr. Lanese's opinion

A-4004-21
22
did not constitute a net opinion and, thus, was admissible.

Finally, defendant argues trial counsel's performance was constitutionally

deficient under the standard set forth in Strickland v. Washington, 466 U.S. 668,

687-688 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42,

58 (1987).8 Specifically, he argues trial counsel was ineffective by failing to:

challenge Dr. Lanese's written report through a pretrial motion, object to the

admission of Dr. Lanese's written report at the fact-finding hearing, object to

her opinion regarding the reasons a child may delay disclosure, and challenge

Dr. Lanese's expert opinion testimony through a post-trial motion.

Defendant's claims against trial counsel are belied by the record, which

shows trial counsel's extensive cross-examination of Dr. Lanese as to the basis

for her report. Specifically, trial counsel was able to elicit testimony whereby

8
The New Jersey Supreme Court adopted the Strickland/Fritz two-part test in
parental termination cases to determine whether counsel was ineffective. N.J.
Div. of Youth and Fam. Servs. v. B.R., 192 N.J. 301, 308-09 (2007). In B.R.,
the Court "direct[ed] that claims of ineffective assistance in termination cases
be raised on direct appeal." 192 N.J. at 311. The Court elaborated that "[i]n
many cases, the issue will be resolvable on the appeal record alone" and
expounded that "approaching the issue of effective assistance of counsel during
the direct appeal process . . . is the most timely and efficient method for
resolving that important issue." Id. at 311-12. The Court Rules have since
reflected that in Division appeals "[c]laims of ineffective assistance of trial
counsel shall be raised exclusively on direct appeal of a final judgment or order."
R. 5:12-7.
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Dr. Lanese conceded that "she is not negating [Kyra's] history of bipolar

disorder," her report was based on Kyra's statements, Kyra had refused to submit

to a physical exam, and that she had not interviewed defendant.

Moreover, we concur with the State's position that trial counsel's decision

not to object to the admission of Dr. Lanese's expert report was not deficient as

counsel used the report to cross-examine Dr. Lanese. Based on this record,

defendant fails to show trial counsel's performance fell outside the realm of

professionally acceptable performance, and, but for this claimed deficiency,

there is a reasonable probability he would have prevailed at trial. See Strickland,

466 U.S. at 687, 699-700.

Affirmed.

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