NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
T.U.B., Defendant, and J.E.C., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF C.I.B., a Minor.
April 24, 2017
appeal from Superior Court of New Jersey, Chancery Division,
Family Part, Essex County, Docket No. FG-07-164-14.
Gentile, Designated Counsel, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney; Mr. Gentile,
on the briefs).
Michelle Cort-Hourie, Deputy Attorney General, argued the
cause for respondent (Christopher S. Porrino, Attorney
General, attorney; Andrea M. Silkowitz, Assistant Attorney
General, of counsel; Ms. Cort-Hourie, on the briefs).
A. Louis, Deputy Public Defender, argued the cause for minor
C.I.B. (Joseph E. Krakora, Public Defender, Law Guardian,
attorney; Danielle Ruiz, Designated Counsel, on the briefs;
Mr. Louis and Olivia Belfatto Crisp, Assistant Deputy Public
Defender, on the brief).
David Pollock argued the cause for amicus curiae John J.
Gibbons Fellowship in Public Interest and Constitutional Law
at Gibbons, P.C. (Gibbons P.C., attorneys; Lawrence S.
Lustberg and Mr. Pollock, on the brief).
Judges Sabatino, Currier and Geiger.
appeal by a father from a final judgment terminating his
parental rights in a Title 30 guardianship case
raises an important and recurring legal issue of statutory
construction. The issue is whether the special evidentiary
provision for Title 9 cases codified at N.J.S.A.
9:6-8.46(a)(4), allowing the admission of certain hearsay
statements by children about corroborated allegations of
abuse or neglect, likewise applies in Title 30
guardianship cases involving the termination of parental
rights. That hearsay exception reads, in pertinent part, as
In any hearing under this act, including an administrative
hearing held in accordance with the 'Administrative
Procedure Act, ' P.L. 1968, Ci. 410 (C. 52:14B-1
et seq.), . . . (4) previous statements made by the child
relating to any allegations of abuse or neglect shall be
admissible in evidence; provided, however, that no such
statement, if uncorroborated, shall be sufficient to make a
fact finding of abuse or neglect.
reasons that follow, we conclude that the plain meaning of
this statutory provision confines the use of this special
pathway for the admission of hearsay by children to
Title 9 proceedings and does not extend to
Title 30 guardianship trials involving the
termination of parental rights. We reach this conclusion
mindful that this hearsay exception has been mistakenly
applied at times in the past in some Title 30
termination proceedings, albeit apparently without the
benefit of the rigorous legal analysis and advocacy that have
been provided to us by counsel in this appeal. We are also
mindful that the Legislature retains the ability to adopt a
curative amendment to Title 30 to extend the hearsay
exception in N.J.S.A. 9:6-8.46(a)(4) to future termination
proceedings, if it chooses to do so in the wake of this
trial court in this case impermissibly relied upon hearsay
statements by children that it admitted, over objection,
under N.J.S.A. 9:6-8.46(a)(4) . The hearsay involved
allegations of sexual abuse that were later in part recanted
by one of the non-testifying child declarants. The trial
court accepted the truth of those allegations, which were not
directly corroborated by independent admissible proof that
defendant did, in fact, sexually assault the girls.
evidential error appears to have affected the trial
court's assessment of whether the Division of Child
Protection and Permanency ("the Division") met its
burden of proof on prongs one, two, and four of the
termination criteria under N.J.S.A. 30:4C-15.1(a) by clear
and convincing evidence. We therefore vacate the final
judgment with respect to those three prongs, and remand for
the trial court to reconsider its decision without reference
to or reliance upon the sexual abuse hearsay. We affirm,
however, the court's discrete findings with respect to
prong three concerning the provision of services and the
absence of other suitable relatives to serve as caretakers.
case hinges upon the trial court's admission and reliance
upon highly inculpatory hearsay statements of two nonparty
female minors, J.H. ("Jenny") and S.C.
("Sandy"),  who did not testify at the Title
30 guardianship trial. The girls alleged that acts of sexual
abuse were committed against them by defendant J.E.C. during
a time frame when defendant and his minor son C.I.B.
("Calvin") were living in their household with the
girls' mother, defendant's girlfriend, T.C.
was born in May 2008. His biological mother is T.U.B., and
his biological father is defendant. T.U.B. is the biological
mother of eight additional children with other fathers.
Defendant himself has two other children, one of whom is an
adult. Neither of his other children lived with him at the
times relevant to this case, and they are not the subject of
Calvin's birth, the Division had received several reports
of parental abuse and neglect of T.U.B.'s children in her
house. In November 2 007, the Division conducted an emergency
"Dodd" removal of five of T.U.B.'s children from
her home. The Division received a sixth referral in May 2008
concerning T.U.B. shortly after Calvin was born, but allowed
Calvin to remain in her home while she was offered services.
year later, in May 2009, T.U.B. brought Calvin to live with
defendant and his paramour T.C, because T.U.B. was unable to
continue to keep Calvin in her mother's apartment. The
parents entered at that time into a case plan with the
Division, agreeing that Calvin would remain in
defendant's physical custody. Not long after that,
defendant was granted temporary physical custody of Calvin,
with T.U.B.'s consent.
in May 2010, T.U.B. voluntarily surrendered her custodial
rights over Calvin. Meanwhile, Calvin continued to reside
with defendant, T.C., T.C.'s two daughters, Jenny and
Sandy, and her minor son.
Two Girls' Allegations of Sexual Abuse
latter part of 2010, Jenny, who was then eleven years old,
reported to a teacher that defendant had been sexually
abusing both her and her sister Sandy on multiple occasions
over a period of several years. Upon learning of these
allegations, the Division arranged a psychosexual evaluation
of defendant by a psychological expert, Barry A. Katz, Ph.D.
written report from 2010 based on the Division's files,
Dr. Katz noted there were "significant and extensive
contradictions in [Jenny's] reporting regarding the
abuse." Jenny initially reported that she had been raped
by defendant. However, she later informed a caseworker that
defendant had "touched [the] inside of her
panties." She separately told hospital staff that he had
only touched her over her clothing and that nothing further
had happened. In addition, Dr. Katz noted that both Sandy and
Jenny's father had denied Jenny's claims that
defendant had also molested Sandy and that the two girls had
fled T.C.'s home to go to Jenny's father's house.
Moreover, medical evaluations of the girls revealed no signs
of bruising, trauma, or injury.
was not criminally charged with sexual wrongs or any other
offenses. However, the Division administratively
substantiated him for sexual molestation of Jenny. He denied,
and continues to deny, engaging in any sexual abuse of Jenny
Katz stated in his 2010 report that there was "no
reliable data ... to indicate that [defendant was] a current
risk of sexually acting out on a child." Based on the
information then available to him, Dr. Katz found
"insufficient evidence to conclude that [defendant] was
a danger to a child in his care." By way of
qualification, Dr. Katz did comment that "[a]dditional
data would be helpful and relevant to increasing the accuracy
of [his] assessment." That information could include
details of the family's past involvement with the
Division, results of diagnostic evaluations of the children,
details of defendant's criminal history, and a copy of
Jenny's personal journal in which she had reportedly
discussed the abuse.
2012, the Division received a referral reporting that a
physical altercation had taken place at T.C.'s home
between defendant and Sandy's biological father, T.J.
T.J. informed Division investigators that he had struck
defendant because he had been told that defendant had
molested the girls. The Division accordingly interviewed
Sandy and Jenny, both of whom claimed in their interviews to
have been sexually abused by defendant.
in the Family Part and Related Developments
2012, a judge in the Family Part awarded the Division the
care and supervision, but not custody, of T.C.'s
children. Defendant was ordered to stay out of T.C.'s
home. The court apparently was not aware that Calvin was also
residing in T.C.'s home at the time.
22, 2012, the Division received a referral from an East
Orange police officer, stating that she had responded to
T.C.'s home where T.U.B. had gone to take physical
custody of Calvin. The officer had taken T.C. and Calvin to
the police station because T.U.B., who had not seen Calvin
for more than a year, was demanding custody, and
defendant's whereabouts were then unknown. T.U.B.
reported that she had received a message on social media
about the fight between T.J. and defendant. T.U.B. further
claimed that she had seen messages between defendant and
Sandy. The messages indicated to T.U.B. they were in a
relationship, and that Sandy had been pregnant and had an
Division at that point conducted a Dodd removal of Calvin
from T.C.'s residence. It took that action because (1)
defendant's whereabouts were unknown, (2) T.C. was not
the legal guardian of Calvin, and she had an open case with
the Division, and (3) T.U.B. did not have residential custody
of Calvin, had a significant history herself with the
Division, and had care and custody of only three of her eight
days later, the Division filed a complaint for custody of
Calvin, which the Family Part granted. The judge ordered
weekly supervised visitation with Calvin for all defendants,
including T.C. The Division referred defendant to a
supervised visitation program at Reunity House in East
Orange. That program included weekly therapeutic supervised
visitation and weekly parenting skills group sessions. The
Division also offered transportation.
August 2012, Calvin was evaluated at the Metro Regional
Diagnostic and Treatment Center ("RDTC") at
Children's Hospital of New Jersey. The RDTC reported that
Calvin was "developmentally delayed in communication
skills, fine motor skills, problem solving skills, and
personal social skills." The RDTC also noted that
Calvin's resource parent had reported he displayed
"significant emotional and behavioral problems including
temper tantrums, defiance, and oppositionality."
September 2012, Calvin was again evaluated by the RDTC, which
concluded he exhibited "[s]low growth - possible failure
to thrive." The RDTC recommended that Calvin continue to
see a nutritionist, and that defendant participate in the
visits and receive parenting skills training to "improve
[Calvin's] eating behaviors and food intake, " and
to work on disciplinary skills.
November 2012, the scheduled date for a fact-finding hearing,
the Division requested that the Title 9 allegations
be withdrawn and the matter go forward instead under
Title 30. The Family Part consequently ordered that
the matter "proceed pursuant to Title 30 as
child welfare concerns exist[ed] and the family [was] in need
of . . . services." The court advised counsel that at
the next hearing it would "consider whether [Calvin]
should be immediately placed with [T.C.]."
November 13, 2012, the Division received a report that
defendant was then living at T.C.'s house, despite the
court's outstanding order prohibiting him from doing so.
However, the girls, T.C.'s son, T.C., and defendant all
denied that he was residing there. During its investigation,
the Division learned that Jenny was not registered for
school. T.C. was accordingly substantiated for educational
later, the Division received a second referral, which
reported that defendant had been residing in T.C.'s home
for over a month. Although T.C, Jenny, and Sandy denied that
defendant was living there, T.C.'s son privately told a
Division supervisor, Ines Perez-Nin, that defendant had been
staying at the home two nights a week. Because defendant had
been court-ordered to remain out of T.C.'s home, the
children were accordingly removed by the Division from
T.C.'s care on November 26, 2012.
following day, Perez-Nin interviewed Jenny and Sandy. Both
girls confirmed to her that defendant had been residing in
T.C.'s home. In addition, Jenny stated to Perez-Nin that
defendant had been sexually abusing her since she was seven
years old. Sandy, meanwhile, told Perez-Nin that she had been
having sex with defendant three to four times per week. Sandy
further revealed that she had become pregnant the previous
year, and that defendant had taken her to get an
Division thereafter referred defendant for an evaluation by
Dr. Mark Singer, a licensed psychologist, in April 2013.
During that evaluation, defendant "denied ever engaging
in inappropriate sexual contact with any minor [or] taking
any minor for any medical procedure related to termination of
pregnancy." Dr. Singer recommended that defendant
complete parenting skills training, and that he also
participate in individual therapy.
addition, the Division referred defendant for a psychosexual
reevaluation, which was again performed by Dr. Katz in July
2013. In his updated 2013 report, Dr. Katz noted that when
asked if he had taken Sandy for a medical procedure,
defendant stated that he had taken her to a hospital, and the
doctor there told him that she had a cyst on her ovary and
surgery was performed the same day. Defendant told Dr. Katz
that he had taken Sandy for surgery because T.C. could not
drive, and she was watching her other children and Calvin. He
also admitted signing the medical consent form, even though
he was not Sandy's guardian.
Katz noted in his reevaluation that there was
"sufficient evidence to conclude that there [were]
concerns regarding the risk that [defendant] may pose to a
child in his care." Further, he stated that "[if]
the children's reports [were] accurate, then it would
indicate that [defendant was] a moderate risk offender."
Katz considered defendant to be "a lower risk to a child
in the community, but a higher risk to a child placed in his
care." He acknowledged that additional data would be
relevant to increasing the accuracy of his assessment,
including a criminal history for defendant, a copy of
Jenny's journal, and relevant hospital records for the
children. Dr. Katz recommended that defendant not have
unsupervised visitation until such additional data was
collected and reviewed, and that defendant engage in therapy
with a professional competent in treating sexual offenders.
trial court ordered defendant to comply with the
recommendations from Dr. Katz's psychosexual
reevaluation. However, defendant resisted doing so, arguing
that the Division had not provided sufficient proof of the
sexual abuse allegations.
was discharged from the Reunity House program for
inconsistent attendance. He also missed numerous parenting
skills classes. In addition, defendant was inconsistent in
attending supervised visits with Calvin, and he eventually
stopped visits altogether. At a family team meeting in April
2014, defendant did agree to comply with parenting skills
classes, individual therapy, and supervised visitation.
Again, he did not follow through.
Calvin's resource parent withdrew her interest in
adopting him after having initially expressed interest in
doing so. The Division consequently changed its plan for
Calvin to "select home adoption, " anticipating the
possibility that a different adoptive parent or family might
T.U.B. temporarily sought custody of Calvin, that effort
ultimately failed when she lost her housing, and she, too,
did not visit him. At an October 2014 permanency hearing, the
trial court consequently approved the Division's plan to
terminate the parental rights of both defendant and T.U.B.
Guardianship Trial and Defendant's Hearsay
lengthy guardianship trial took place over ten intermittent
trial days from February 2 015 through January 2016. The
Division presented expert testimony from Dr. Elizabeth M.
Smith, a licensed psychologist, and Dr. Katz. The Division
also presented factual testimony from caseworker Emerald Irby
and supervisor Perez-Nin, who recounted the Division's
investigation and efforts concerning Calvin and the family.
The alleged victims of sexual abuse, Jenny and Sandy, did not