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March 9, 2026 Get Citation Alerts Download PDF Add Note

Dcpp v. M.M. and A.M., in the Matter of E.M.

New Jersey Superior Court Appellate Division

• Citations: None known
• Docket Number: A-0279-24/A-0280-24

• Precedential Status: Non-Precedential

• Opinion

• Authorities (10)

• Cited By (0)

• Summaries (0)

• Similar Cases (39.1K)

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Combined Opinion

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NOT FOR PUBLICATION WITHOUT THE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-0279-24
A-0280-24

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

v.

M.M.,

Defendant-Appellant/
Cross-Respondent,

and

A.M.,

Defendant-Appellant.

---

IN THE MATTER OF
E.M. (DISMISSED), minor,

and

A.M., minor,

Cross-Appellant.

---

Argued February 2, 2026 – Decided March 9, 2026

Before Judges Sabatino and Natali.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FN-14-0052-23.

Adrienne Kalosieh, Assistant Deputy Public Defender,
argued the cause for appellant M.M. (Jennifer N.
Sellitti, Public Defender, attorney; Adrienne Kalosieh,
on the briefs).

David A. Gies, Designated Counsel, argued the cause
for appellant A.M. (Jennifer N. Sellitti, Public
Defender, attorney; David A. Gies, on the briefs).

Wesley Hanna, Deputy Attorney General, argued the
cause for respondent (Jennifer Davenport, Acting
Attorney General, attorney; Sookie Bae-Park, Assistant
Attorney General, of counsel; Jessica A. Prentice,
Deputy Attorney General and Wesley Hanna, on the
briefs).

Neha Gogate, Assistant Deputy Public Defender,
argued the cause for minor cross-appellant A.M.
(Jennifer N. Sellitti, Public Defender, Law Guardian,
attorney; Meredith Alexis Pollock, Deputy Public
Defender, of counsel; Neha Gogate, of counsel and on
the briefs).

PER CURIAM

This appeal stems from findings of abuse and neglect that were largely

dependent upon the subjective assessments of a non-testifying child

A-0279-24
2
psychologist who twice interviewed the child. The interviewer's hearsay

opinions set forth in two reports were admitted in evidence by the trial court,

over objection, in violation of N.J.R.E. 808 and associated case law.

The child's veracity was a critical aspect of the case because, shortly after

being evaluated at a treatment facility, she recanted her initial narrative about

being abused and neglected by her parents. Although the Division of Child

Protection and Permanency presented expert testimony from a supervising

doctor, that expert never examined the child, and had no first-hand knowledge

of her oral account of the abuse. To a material extent, the testifying expert's

assessment of the child's veracity was informed by the interviewing

psychologist's subjective impressions of the child.

Relying substantially on the interviewing psychologist's hearsay

impressions as conveyed in the reports and through the testifying expert, the

trial court found that the child's parents had committed abuse or neglect under

Title Nine. The court accordingly placed the child's two parents on the Title

Nine registry.

The parents, joined by the Law Guardian for the child, appeal. For the

reasons that follow, we reverse because of the evidentiary error in violating

N.J.R.E. 808.

A-0279-24
3
The three appellants were deprived of a fair opportunity to cross-examine

the interviewing psychologist about his subjective impressions. The deprivation

of that opportunity was unduly prejudicial in this case, in which the veracity of

the child's pre-recantation narrative was crucial and in which corroborating

proof was absent, or, at best, weak and inadequate.

I.

We briefly summarize the pertinent chronology of events.

The appeal concerns a finding by the Family Part that the child at issue,

A.M. ("Amy"), was abused by her father, defendant A.M., and her mother,

defendant M.M..1

Amy was born in May 2007. She lived in the same household with her

parents, her adult older sister and her older brother, E.M. ("Ed").2

The family first became known to the Division in 2022, when the Division

received reports from Amy's school that her parents allegedly had permitted Ed

1
To protect the identity of the family members involved, we use pseudonyms
for the children used in the briefs. Also to avoid confusion, we refer to the
parents by their respective roles, as we note the daughter and father happen to
share the same initials, i.e., "A.M."
2
Ed was initially a named party in this case but was dismissed when he turned
eighteen. The older sister was not involved in the case.

A-0279-24
4
to physically discipline her. The Division investigated the accusation and

determined those reports of abuse in 2022 were "unfounded."

In February 2023, Amy, who was then age fifteen, alleged in a letter to

her teacher that her father had physically abused her the previous night. Amy

claimed he had struck and abused her upon discovering she had lied about

walking in a nearby park with a boy of whom her parents disapproved.

As the 2023 incident was initially described by Amy, the father called her

a "slut" and a "whore." He then threw her on the couch, and he allegedly

strangled her until her face turned purple. The mother pulled the father off Amy

and sent her to her room, supposedly striking Amy on her back as she retreated.

The father grabbed Amy by her hair, threw her to the floor, and threatened to

get one of his guns and shoot her. The mother de-escalated the situation and

told Amy to lock the door to her room.

Amy stated she had previously lied to the Division in the 2022

investigation and that Ed had, in fact, abused her. Furthermore, Amy claimed a

long history of abuse by her father, which she said he had inflicted on her, her

mother, and her adult older sister.

A-0279-24
5
The rest of the family members in the household denied Amy's allegations.

In particular, Ed stated that the father had only "lightly" placed his hands on

Amy's shoulders and that she had simply fallen backwards onto the couch.

A physical medical examination of Amy conducted two days after the

alleged 2023 attack did not document any bruises or injuries. 3 The police

investigated the matter and took a recorded statement from Amy, in which she

repeated the allegations. The police also conducted a search of the family

residence and found multiple guns where Amy said they were stored.

Concerned that Amy may have been in imminent danger, the Division

removed her from the family's home and placed her in the care of her maternal

grandparents. The Division initially allowed the mother to have supervised

visitation with Amy, but it discontinued the visits after Amy claimed the mother

had told her during one such visit to retract her allegations.

Amy was referred to a diagnostic center for a psychosocial evaluation. On

February 23, 2023, Amy was interviewed there by a pre-doctoral child

3
The record indicates that certain "blue light" photographs were taken of Amy
that might have revealed internal bruising. However, those photos were not
admitted into evidence because they apparently were supplied too late in
discovery to opposing counsel. Additionally, they were submitted without an
expert report supporting the photographic technology used.

A-0279-24
6
psychologist.4 The same day as that interview, Amy's parents were arrested in

parallel criminal proceedings stemming from the allegations of abuse. 5

In addition to examining Amy at length, the interviewing psychologist

reviewed more than a dozen Division records, performed a collateral interview

with a Division caseworker, and administered several psychological tests. He

issued an eighteen-page, single-spaced initial report, which he signed on the

final page. The report was co-signed by his "psychology supervisor" at the

diagnostic center and by the center's "mental health director."

During her February 23 session with the interviewing psychologist, Amy

essentially reiterated the allegations against her parents that she had reported to

the authorities, including the father's alleged verbal and physical aggression, his

threat to use a gun, and the mother's own involvement in the incident. The

interviewing psychologist noted in his report that these accusations were

consistent with her reports to the school and others.

4
The interviewer's two reports identify him as a "psychology intern," with a
master's degree. Although he is often described in the briefs as an intern, we
refer to him variously as "the interviewing psychologist", "the interviewer", or
"the examiner."
5
Eventually, the criminal charges against the mother were dismissed outright,
and those against the father were dismissed via pretrial intervention.
A-0279-24
7
The interviewing psychologist preceded his assessment of Amy with

several first-hand impressions. He noted she "presented as a cooperative but

anxious adolescent" who "demonstrated an appropriate range of affect,

appearing emotional on multiple occasions crying when discussing her family."

He further noted she "demonstrated appropriate comprehension of the

evaluator's questions and responded articulately." The report detailed what Amy

told him about a host of topics, including her family dynamics, her social life,

her, relationship with a boyfriend, the 2022 punching incident with Ed, a pattern

of alleged violence by her father, drugs and alcohol, her health, her feelings

about being physically hurt, the care provided by her grandparents, and her lack

of interest in individual therapy.

In a section of his report titled "Summary and Formulation," the

interviewing psychologist expressed several clinical opinions. Among other

findings, he noted that Amy presented "significant feelings of worry, isolation,

and sadness," in the aftermath of the reported choking incident. Diagnostically,

he opined that Amy "experiences a number of related trauma symptoms,

including hypervigilance, increased startle response, persistent negative mood,

and self-blame." He further opined that "[w]hile she lacks the avoidance

symptoms necessary for a diagnosis of [PTSD], [Amy's] presentation is

A-0279-24
8
consistent with the diagnosis of other specified trauma- and stressor-related

disorder."

The interviewing psychologist discerned that Amy "is grieving the sudden

loss of contact with both of her primary attachment figures." He elaborated that

Amy's "attachments towards her family members may also have played a role in

her initial denial [of the abuse], given her grief at the present separation."

After his lengthy discussion, the interviewing psychologist rendered the

following clinical conclusions:

Based on the information provided, the family's
presentations throughout [the Division's] involvement,
the testing, and the clinical interviews, the following
are clinically supported: physical abuse by [the father],
psychological abuse by [the father], and physical abuse
by [Ed].

[(Emphasis added).]

Notably pertinent to the Rule 808 hearsay issues before us, the examiner added:

"Clinical support is based on the client's presentation at the time of the

assessment and is in conjunction with the information known at the time."

(Emphasis added).

Near the end of the February 23 interview after recounting the acts of

abuse, Amy received a telephone call from her grandmother, which the

interviewing psychologist allowed her to take. As described by the interviewer

A-0279-24
9
in his report, Amy appeared to be "surprised at the contents of the call." He

perceived that, "Once the call had ended, her body language and tone of voice

briefly became more tense, before returning to a more relaxed state a few

minutes later."

Immediately after the February 23 interview ended, Amy confronted a

Division case worker about her parents' arrests and stated that she did not want

them to go to jail.

Several days later, on March 9, Amy contacted the police department and

prosecutor's office and recanted her allegations of abuse. She claimed the events

had actually occurred as her brother had described them, and that her father had

only lightly pushed her on the shoulders. She denied that the father had

threatened her with a gun, claiming she had only mentioned firearms to ensure

she would be removed from the home. She explained she had fabricated the

allegations so that she could live with friends or other relatives, and thereby

avoid her family's strict household rules, particularly as they related to dating

boys.

After Amy's recantation, the Division requested that she be given a second

psychosocial evaluation at the diagnostic center. The interviewing psychologist

accordingly re-examined her on August 1, 2023, issuing an eight-page

A-0279-24
10
supplemental report. Before that interview, he reviewed additional records from

the Division and a supplementary investigation report. "[I]n order to gain more

information," the examiner also listened to an audio recording of Amy's

recantation to the police, in which she reported that her previous disclosures of

abuse "were a lie."

During her second interview with the examiner, Amy declined to answer

his questions about the recantation or her grandmother's telephone call to her at

the initial interview. Nonetheless, the examiner expressed several clinical

reasons for doubting Amy's recantation.

For instance, the examiner commented:

During her 3/9/23 statement to [the police], [Amy] said
she originally disclosed abuse hoping to leave home
and instead live with her friends. Her desire to live with
her friends had reportedly also been stated to [the
Division] as of her psychosocial evaluation on 2/23/23.
At the time of that psychosocial evaluation, however,
[Amy] had been living with [her grandmother] for more
than two weeks, and she still provided a detailed
disclosure of multiple instances of abuse. [Amy] has
repeatedly mentioned that [her parents'] arrests go
against her wishes. During her psychosocial evaluation
on 2/23/23, her reported statements to [the Division
caseworker] of 2/23/23, and her recantation statement
on 3/9/23 to [the police], [Amy] mentioned a strong
desire for her parents to not be incarcerated. At the time
of that psychosocial evaluation, however, [Amy]
reported that [her father] had already been incarcerated,
and she still provided an incredibly detailed disclosure

A-0279-24
11
of multiple instances of abuse. This timing also
conflicts with [Amy's] stated rationale that she
fabricated her disclosure as a means to secure services
for her family.

[(Emphasis added).]

The interviewing psychologist's second report concluded with the

following professional opinions about the credibility of Amy's recantation:

Upon review of all available information, including the
timeline of events, it appears likely that [ Amy's]
recantation was spurred by a combination of [her
mother's] arrest and subsequent pressure from her
family. [Amy's] recantation does not eliminate the
possibility that abuse occurred.

[(Emphasis added).]

The psychologist added:

It is especially likely that [Amy's] initial disclosures
were truthful given her emotionality, extremely high
level of detail, and consistency throughout [the
Division's] involvement. [Amy] also made statements
during the psychosocial interview on 2/23/23 about her
desire to keep her family members out of jail, which
reduces her possible motivation to fabricate and lends
additional credence to the disclosure.

[(Emphasis added).]

He supported those conclusions about Amy's veracity by referring to general

principles within his profession:

A-0279-24
12
When abuse is reported within a family system,
recantation is often an artifact of familial pressure on
an adolescent to recant their disclosure in order to
preserve the family system or prevent legal
involvement.

[(Emphasis added).]

Despite Amy's recantation, the Division elected to litigate the Title Nine

charges against the parents. A Family Part judge conducted a Title Nine fact-

finding hearing over three non-consecutive days between January and April

1. Both the father and the mother appeared and were each represented by

counsel. Amy was represented by a Law Guardian, who likewise argued against

a finding of abuse or neglect. Amy did not testify, nor did her parents.

The Division presented background testimony from Amy's teacher and a

case worker, neither of whom had personally witnessed abuse or neglect. In

addition, the Division's main trial witness was the child psychologist ("the

testifying expert"), who was a supervisor at the diagnostic center.

For reasons that are not entirely clear, the Division did not call the

interviewing psychologist as a witness at the Title Nine trial. 6 Instead, the sole

psychologist presented as a trial witness was the examiner's supervisor.

6
The record intimates that the interviewing psychologist had completed his
internship and thesis, but there is no indication as to what, if any, attempts the

A-0279-24
13
As shown by his curriculum vitae in the record, the testifying expert has

extensive experience and credentials in the field of child psychology. His

general qualifications as an expert were stipulated to by all three opposing

counsel. He has a Ph.D. in counseling psychology, and he has practiced in the

field for over two decades. For the past twenty-five years he has been both a

provider of psychological evaluations at the diagnostic center, and a supervisor

of other mental health professionals who perform evaluations there. He has

testified as an expert numerous times.

In his testimony, the expert described the "treatment team" arrangement

the center uses. In his role as a supervisor, the expert trains new professionals

in interviewing techniques and suggests to them topics to plan to ask about

before the interviews. He reviews clinical, investigatory, medical, and court

documents and discusses their significance with his supervisees. For the

instances in which the supervisee conducts the patient's interview, the expert

reviews the interviewer's draft report, and at times suggests revisions. If he

approves the report, he co-signs it.

Division or its trial counsel made to locate him and obtain his trial testimony,
either remotely, in person, or via a de bene esse videotaped deposition.
A-0279-24
14
In the present case, the testifying expert did not examine or meet Amy.

Nor did he listen to the audio recording of her recantation to the police, relying

instead on the examiner's written account of that recording. The testifying

expert did personally conduct a collateral interview with Ed. It does not appear

that the expert generated his own written report but instead referred in his

testimony to various portions of the interviewing psychologist's two written

reports from February and August 2023.

Counsel for the parents and the Law Guardian objected to the court

admitting the expert's testimony, arguing it was improperly based upon the

hearsay opinions of the interviewing psychologist. The court overruled the

objections. The court noted it had presided over past Division cases in which

other defendants had objected to the "team approach" of psychological

interviews, and that in those cases it had allowed opinion testimony by experts

who had relied on hearsay reports by other members of the treatment team.

In its oral decision on the merits, the trial court concluded that child abuse

had occurred and was corroborated by the written reports and the expert's

testimony. The court further concluded that Amy's allegations of previous abuse

at the hands of her brother, in 2022, and father, during multiple unspecified

periods in her life, had occurred. Noting the timeline of events between Amy

A-0279-24
15
discovering her parents' arrest and her recantation, the court determined her

recantation was not credible and likely was the result of her desire to protect her

family.

By a preponderance of the evidence, the court concluded the father had

abused and neglected Amy in violation of N.J.S.A. 9:6-8.21(c)(4). The court

additionally found that the mother had abused and neglected Amy by striking

her on the back during the 2023 incident and by failing to contact the authorities.

As a consequence of the court's findings, both parents were placed on the

Child Abuse Registry, pursuant to N.J.S.A. 9:6-8.11. Thereafter, the parents

complied with Division-mandated services and Amy ultimately was reunified

with her family. As a result, the Title Nine case was terminated in August 2024.

Since then, Amy has reached the age of majority.

II.

On appeal, defendants and the Law Guardian all urge that the findings of

abuse or neglect be reversed and that the parents be removed from the Registry.

Fundamentally, they argue: (1) the examiner's reports containing hearsay

opinions and the expert's testimony were inadmissible, because the complexity

of the psychological diagnosis in this case required the interviewing

psychologist to testify and be cross-examined pursuant to N.J.R.E. 808; and (2)

A-0279-24
16
Amy's out-of-court statements were not sufficiently corroborated to support a

finding of abuse.

In addition, the mother argues she should not have been found to have

abused Amy when she intervened in the 2023 incident and protected her child.

The father, meanwhile, argues the court erroneously failed to connect his actions

to any harm to Amy, and should have analyzed the reasonableness of his conduct

in light of his discovery that Amy had lied to him about breaking household

rules concerning dating.

It is well settled that to establish a violation of Title Nine, the Division

has the burden of showing by a preponderance of competent, material, and

relevant evidence "that the child is an abused or neglected child." N.J.S.A. 9:6-

8.46. Abuse or neglect occurs when:

[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 . . . 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,
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)(4).]

A-0279-24
17
"Abuse and neglect cases are generally fact sensitive," and the court must

consider the totality of the circumstances in determining whether the Division

has met its burden of proof. See N.J. Div. of Youth & Fam. Servs. v. P.W.R.,

205 N.J. 17, 33-34 (2011).

In a Title Nine hearing, a child's out-of-court "previous statements . . .

relating to any allegations of abuse or neglect shall be admissible in evidence. "

N.J.S.A. 9:6-8.46(a)(1)(4). However, a child's statements must be sufficiently

corroborated for a finding of abuse to be made. P.W.R., 205 N.J. at 33. A

confession or admission by a defendant is the most effective form of

corroboration. N.J. Div. of Youth & Fam. Servs. v. Z.P.R., 351 N.J. Super. 427,

436 (App. Div. 2002). However, 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," indirect or

circumstantial evidence that provides support for the child's allegations can

serve as adequate corroboration. Id. at 435-36. This indirect evidence can

include scientific or psychological expert evidence demonstrating either the

physical or emotional ramifications of the alleged abuse. N.J. Div. of Child

Prot. & Permanency v. I.B., 441 N.J. Super. 585, 587-88 (App. Div. 2015).

Consistency in a child's statements "alone does not constitute

A-0279-24
18
corroboration." N.J. Div. of Child Prot.& Permanency v. N.B., 452 N.J. Super.

513, 523 (App. Div. 2017); see also N.J. Div. of Child Prot. & Permanency v.

A.D., 455 N.J. Super. 144, 157 (App. Div. 2018) ("The mere repetition and

consistency of [a child's] statements are insufficient to support a finding of

corroboration under N.J.S.A. 9:6-8.46(a)(4)").

Furthermore—and especially pertinent here--the corroborative evidence

must be separately admissible. N.B., 452 N.J. Super. at 524 (reversing a finding

of abuse and neglect after determining that an expert report was inadmissible

under N.J.R.E. 808 and the only admissible evidence was the repetition of the

child's allegations).

The pivotal issues before us are evidential in nature. At the heart of those

issues is the propriety of the Division relying substantially on the hearsay

opinions of the non-testifying interviewing psychologist to support its case in

chief. The analysis is informed by both the Court Rules governing child welfare

cases brought by the Division and the pertinent Rules of Evidence.

According to Rule 5:12-4(d), the Division may submit into evidence in

child welfare cases "reports by staff personnel or professional consultants"

provided those reports satisfy N.J.R.E. 803(c)(6), otherwise known as the

business records exception to hearsay, and N.J.R.E. 801(d), which broadly

A-0279-24
19
defines a "business" under that exception to include non-profit organizations and

government agencies.

N.J.R.E. 803(c)(6) provides that a hearsay record may be admissible "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 such writing or record ." However,

with respect to "opinions or diagnoses" that business-record exception is

expressly made "subject to [Evidence] Rule 808."

N.J.R.E. 808, in turn, directs that:

Expert opinion that is included in an admissible hearsay
statement shall be excluded if the declarant has not been
produced as a witness unless the court finds that the
circumstances involved in rendering the opinion tend to
establish its trustworthiness. Factors to consider
include the motive, duty, and interest of the declarant,
whether litigation was contemplated by the declarant,
the complexity of the subject matter, and the likelihood
of accuracy of the opinion.

[(Emphasis added).]

In their briefs on appeal, appellants all argued that the subjective opinions

of the interviewing psychologist were inadmissible under Rule 808 because they

entailed complex diagnoses and subject matters and were not sufficiently

trustworthy (nor found by the court to be) to be admitted without an opportunity

to cross-examine the interviewer Relatedly, appellants maintain that the

A-0279-24
20
Division's testifying expert was used here as an improper conduit for the

inadmissible hearsay opinions of the interviewer, and the trial court should not

have relied on that evidence in its factual findings.

The Division's responding brief on appeal did not discuss Rule 808 7 but

instead invoked N.J.R.E. 703, which provides that:

The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to the expert at or before
the proceeding. 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.

[(Emphasis added).]

In overruling appellants' objections to the hearsay within the interviewing

psychologist's reports, the trial court relied on the "facts or data" facet of

N.J.R.E. 703. It did not address the prohibition within N.J.R.E. 808 on admitting

or relying upon complex disputed opinions expressed by experts within hearsay

reports. Nor did the trial court make any express findings of the trustworthiness

of the embedded opinions, although we can readily infer from the court's

7
We invited the Division after the appellate argument to submit a supplemental
brief on the Rule 808 issues and have considered that additional brief and the
opposing submissions.
A-0279-24
21
colloquy that it regarded them as sufficiently trustworthy to be used by the

testifying expert.

With all due respect to the trial court, the admission and reliance upon the

examiner's subjective assessments of the child in this case were not in

conformity with Rule 808 and associated case law.

Applying Rule 808 to a child welfare case in N.J. Div. of Child Prot. &

Permanency v. N.T., 445 N.J. Super. 478, 501 (App. Div. 2016), we held that a

non-testifying psychologist's report diagnosing a child with PTSD was

inadmissible because the diagnosis relied on "subjective judgment and

complexity." In particular, we noted that "psychological evaluations generally

'entail [] the exercise of subjective judgment rather than a straightforward simple

diagnosis based upon objective criteria or one upon which reasonable

professionals could not differ.'" Ibid. (alterations in original) (quoting N.J. Div.

of Youth & Fam. Servs. v. M.G., 427 N.J. Super. 154, 174 (App. Div. 2012)).

Generally, an expert medical opinion is inadmissible under N.J.R.E. 808

"because of the complexity of the analysis involved in arriving at the opinion

and the consequent need for the other party to have an opportunity to cross -

examine the expert." Ibid. (quoting N.J. Div. of Youth & Fam. Servs. v. B.M.,

413 N.J. Super. 118, 130 (App. Div. 2010)). Because the Family Part in N.T.

A-0279-24
22
admitted the report without making particularized findings as to its

trustworthiness, we concluded the court had misapplied its discretion. Id. at

506.

Similarly, in A.D., 455 N.J. Super. at 159 (citing James v. Ruiz, 440 N.J.

Super. 45, 73 (App. Div. 2015)), we ruled that a non-testifying expert's report

that found a child had been sexually assaulted was inadmissible under Rule 808

because it was "sufficiently complex and controversial." Although the opinions

and conclusions in the hearsay report were inadmissible, factual statements

within it such as the fact that the child's hymen was not intact were admissible.

Id. at 160.

Additionally, we have further noted in another child welfare case that

when an expert report entails "the exercise of subjective judgment rather than a

straightforward, simple diagnosis based upon objective criteria or one upon

which reasonable professionals could not differ" and the reports are prepared in

aid of litigation, it is more difficult to find these reports trustworthy without the

expert who wrote the report appearing for cross examination. M.G., 427 N.J.

Super. at 174-75.

Here, although some portions of the interviewing expert's two reports

contain factual information (such as, for example, biographical details about

A-0279-24
23
Amy and the numerical results of her psychological tests), substantial portions

convey opinions about the veracity of her original narrative and the non-veracity

of her recantation. Those opinions are complex and tied to the interviewer's

diagnoses, which were listed with DSM codes in his reports.

In his second report, the interviewer presented very specific and pointed

opinions—which we have quoted above--about why Amy's original account

was, clinically, more likely to be true than her later recantation. All three

appellants dispute those opinions. Although the interviewer did not diagnose

Amy with PTSD as in N.T., his diagnosis of "other specified trauma- and

stressor-related disorder" (DSM 309.89, 43.8) is similarly complex and

disputed. It was unfair to appellants to deprive them of a chance to cross-

examine the interviewer and probe into his first-hand impressions of the child.

By analogy, this court recently noted, in a published criminal case, the

quagmire of admitting hearsay findings of a non-testifying subordinate through

the trial testimony of a supervising expert. See State v. K.W., __ N.J. Super.

_, _ (App. Div. 2025) (slip op. at 31). Generally, it does not violate the

Confrontation Clause in criminal cases for a supervisor to testify about the work

of a subordinate in conducting certain scientific tests, provided "the supervisor

is knowledgeable about the testing process, reviews scientific testing data

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produced . . . and prepares, certifies, and signs a report setting forth the results

of the testing." Ibid. (quoting State v. Michaels, 219 N.J. 1, 6 (2014)). However,

although supervisors may render their own conclusions on the results of those

tests that depend to some degree upon the work of a subordinate, the supervisor

may not constitutionally serve as a conduit for the subordinate's hearsay

opinions that cannot be cross-examined. Id. at __ (slip op. at 35). See also

Smith v. Arizona, 602 U.S. 779, 802 (2024) (underscoring that principle). That

same quagmire exists here in this civil context. In any event, Rule 808 and our

case law applying it provide ample non-constitutional grounds for reversal. 8

In concluding that Amy was abused, the interviewer substantially relied

on her demeanor and emotionality such as noting that she appeared "anxious",

her fear at returning home and her "hypervigilance, increased startle response,

persistent negative mood, and self-blame." The psychologist's trained

8
We are unpersuaded by the unreported opinions cited to us by the Division in
its post-argument brief, as none of them are factually comparable. Moreover,
our own research has identified at least one unpublished opinion from 2018—
involving a subordinate's interview reports coincidentally from the same
diagnostic center as in this case—in which we held that complex and disputed
opinions within those hearsay reports about a child's recantation could not be
admitted through a testifying supervisor. We do not cite any of these
unpublished opinions, in compliance with Rule 1:36-3, and appreciate that we
are not bound by them.

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observation of the child's demeanor was manifestly important to the first report's

conclusion that she had suffered physical abuse. Furthermore, her demeanor

when she answered the phone call during the first interview, which only the

interviewer witnessed, was instrumental to determining whether Amy's

recantation was credible or due to familial pressure.

Although the testifying expert's opinions were not in all respects identical

to those of the interviewing psychologist, they were clearly informed and

influenced by the interviewer's hearsay subjective observations. As the

Division's brief acknowledges, that expert's testimony was based in part upon

the interviewer's impression of Amy's "change in affect" at the second interview.

The court's evidential error was not inconsequential. As we noted in Part

I, no third-party eyewitness corroborated Amy's initial accusations. No photos

were admitted into evidence that revealed marks or bruising; additionally no

injuries were detected by medical reports. Neither parent made corroborating

admissions. The interview of Ed added little, if anything, to substantiate the

Division's case. The police seizure of firearms at the residence does not prove

that the father brandished a gun at Amy, and her initial account that he had

threatened to fire it at her is uncorroborated by any witness. Since Amy knew

her father owned a gun, she could have readily fabricated the spoken threat for

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the purposes we have discussed above.

For these many reasons, we vacate the trial court's decision and direct that

the parents be removed from the Registry within forty-five days. We discern no

reason to remand for a new hearing since Amy has now reached the age of

majority.

Vacated and remanded. 9

9
To the extent that our disposition may pose practical difficulties for the
diagnostic center and other similar facilities that utilize a "team approach" to
treatment, we suggest that in the future it may be prudent, if feasible and not
clinically contraindicated, to have child interviews recorded on closed -circuit
video, so that a supervising expert testifying at trial will be able to see and hear
the child's recorded statements. The topic may also be suitable for consideration
by the Supreme Court's respective Committees on Family Practice and
Evidence, and we invite counsel to present it to those Committees, with a copy
of this opinion.
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