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New Jersey Division of Child Protection and Permanency v. N.B.

Superior Court of New Jersey, Appellate Division

December 19, 2017

N.B., Defendant-Appellant. IN THE MATTER OF D.B., Minor.

          Argued November 6, 2017

         On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-0185-15.

          David A. Gies, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; David A. Gies, on the briefs).

          Tasha M. Bradt, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Tasha M. Bradt, on the brief).

          Olivia Belfatto Crisp, Assistant Deputy Public Defender, argued the cause for minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Olivia Belfatto Crisp, on the brief).

          Before Judges Sabatino, Ostrer [1] and Whipple.


          WHIPPLE, J.A.D.

         Defendant N.B. (mother) appeals from a May 16, 2016 order terminating litigation after a fact-finding hearing wherein a Family Part judge determined she had abused or neglected her son, D.B.

         At the fact-finding hearing, the trial judge impermissibly admitted and relied on insufficiently corroborated statements of the child, as well as facts and complex diagnoses within a hearsay report of a psychologist consultant of the Division of Child Protection and Permanency (Division). For these reasons, we reverse.


         We glean the following facts from the record. On January 10, 2015, the Woodbridge Township Police Department contacted the Division to investigate a complaint by the biological father of then twelve-year-old D.B. who had been living with mother. A Woodbridge Township Police officer reported D.B. called an aunt because he was frightened after mother left him alone during the day in their hotel residence.

         The officer reported the child's aunt picked him up from the hotel and took him back to her home. The father picked up D.B. from the aunt's home and took the child to police headquarters. D.B. reportedly told the officer that mother and her boyfriend had a verbal argument, and during this argument, mother said "she was going to harm herself one of these days." The Division workers responded to the Woodbridge police headquarters and met with the officer, who reported what the child had told him earlier about mother's suicidal statement.

         Two other officers went to mother's hotel to conduct what is termed a "welfare check." According to the police, mother reported she did have an argument with her boyfriend, went to take a drive for a couple of hours, and left D.B. at the hotel because he did not want to go for a drive. The officers reported mother was in a good mood and stated "when she said she was going to hurt herself it was just a figure of speech in the heat of the moment."

         Two Division Special Response Unit (SPRU) workers met with D.B., who reportedly told them mother, her boyfriend, and he were all in a car heading home from dinner the night before, mother and her boyfriend argued, and mother told her boyfriend, "[s]ince we're all here why don't you drive off the bridge and kill us all." According to the Division's investigation summary, D.B. said mother and her boyfriend previously had physical fights, but it was not physical that particular day. D.B. reported he had attempted in the past to intervene during fights but was never hurt when trying to protect mother. D.B. also told the SPRU workers he called his aunt because he did not feel safe and expressed fear that mother was "going to go off on [him] when she gets [him] alone."

         Later that evening, the SPRU workers interviewed mother who reportedly stated that she had an argument with her boyfriend but denied saying she wanted to drive off a cliff, or that she ever made any comments about wishing to hurt herself. According to the Division's investigation summary, mother also denied ever having any physical altercations with her boyfriend, stating they just argued verbally.

         The next day, the Division removed D.B. from mother's custody pursuant to N.J.S.A. 9:6-8.29 and N.J.S.A. 9:6-8.30, and on January 14, 2015, the Division filed a verified complaint seeking the care and supervision of the child pursuant to N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12. The court then placed D.B. with his father, where he remains.

         On January 12, 2015, the Division assigned an intake worker who spoke with mother. According to the intake worker's written report, mother told the intake worker she was not fearful of her boyfriend and if domestic violence did occur she would call 911. That same day, the intake worker spoke to the boyfriend, who said he would "do anything he [could] to ensure that [mother] gets [the child] back with her" and was "willing to comply with the Batterers Intervention Program and undergo a psychological evaluation if needed." The intake worker prepared her portion of the investigation summary based on information she received from the SPRU workers but did not interview the child, nor question mother, her boyfriend, or the father about the January 10, 2015 incident.

         D.B. was evaluated at the direction of the Division by Melissa Rivera Marano, Psy.D., a licensed psychologist, who prepared a written report evaluation of the child on March 4, 2015. This report was presented to the court with Dr. Marano's certification, dated May 17, 2015, which stated: (1) she is a licensed, practicing psychologist in New Jersey; (2) the report was made in the regular course of business; and (3) the report was made within a reasonable time after "the condition and/or occurrence."[2]

         The report noted D.B.'s "appropriate hygiene and dress[, ]" as well as the fact that his "[m]ood and affect were within normal range." The report also contained the D.B.'s statements ...

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