N.J. Div. of Child Prot. & Permanency v. N.V. (In re D.D.C.H.)
| Decision Date | 14 August 2020 |
| Docket Number | DOCKET NO. A-2062-18T4 |
| Parties | 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. |
| Court | New Jersey Superior Court — Appellate Division |
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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).
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 tocorroborate 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 neglectedher 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.
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 (), after which it entered a finding of abuse or neglect against defendantunder 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.
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.
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 wasinfected 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., 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 orthree 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 do so after she interviewed D.D.C.H. 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.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...
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