                      RECORD IMPOUNDED

                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-1008-14T4

NEW JERSEY DIVISION OF
CHILD PROTECTION
AND PERMANENCY,
                                      APPROVED FOR PUBLICATION
      Plaintiff-Respondent,                 May 31, 2016

v.                                      APPELLATE DIVISION

N.T.,

      Defendant-Appellant,

and

A.K. and J.A.V.,

     Defendants.
________________________________

IN THE MATTER OF

N.A.T. AND J.V., minors.
________________________________

          Submitted February 2, 2016 - Decided May 31, 2016

          Before Judges Reisner, Hoffman and Leone.

          On appeal from the Superior Court of New
          Jersey, Chancery Division, Family Part,
          Burlington County, Docket No. FN-03-101-14.

          Joseph E. Krakora, Public Defender, attorney
          for   appellant  (Amy   Vasquez,  Designated
          Counsel, on the brief).

          John J. Hoffman, Acting Attorney General,
          attorney for respondent (Melissa H. Raksa,
          Assistant Attorney General, of counsel;
           Hannah Edman,           Deputy       Attorney    General,       on
           the brief).

           Joseph E. Krakora, Public Defender, Law
           Guardian, attorney for minors N.A.T. and
           J.V. (Todd Wilson, Designated Counsel, on
           the brief).

       The opinion of the court was delivered by

LEONE, J.A.D.

       Defendant N.T. (Stepfather) appeals the trial court's April

2, 2014 finding that he abused or neglected his stepson J.V. by

allowing    J.V.    to    witness       him      perpetrate       domestic       violence

against    J.V.'s        mother,     defendant          A.K.      (Mother).              Over

Stepfather's       hearsay     objections,           the        Division        of      Child

Protection and Permanency (Division) based its case entirely on:

(1)    out-of-court       statements        by     Mother        and    J.V.,        largely

contained in a report prepared by a Division caseworker and a

psychological      evaluation      of   J.V.;      and     (2)    the   diagnoses          and

opinions in the evaluation by the psychologist, who did not

testify.    In finding harm to J.V., the trial court relied on the

psychologist's diagnoses and opinions.

       Stepfather argues that Mother's statements in the report

and the evaluation, and the psychologist's evaluation itself,

were    inadmissible       hearsay.             Thus,      we    must      address         the

admissibility of reports prepared by Division staff personnel,




                                            2                                        A-1008-14T4
or affiliated medical, psychiatric, or psychological consultants

(Division reports).

    To be admissible as a business record of the Division, a

Division      report    must    meet    the    requirements         of   N.J.R.E.

803(c)(6), whether the report is offered under N.J.S.A. 9:6-

8.46(a)(3), Rule 5:12-4(d), or In re Guardianship of Cope, 106

N.J. Super. 336 (App. Div. 1969).                If a Division report is

admissible under N.J.R.E. 803(c)(6) and meets the requirements

of N.J.S.A. 9:6-8.46(a)(3), Rule 5:12-4(d), or Cope, the court

may consider the statements in the report that were made to the

author   by      Division   staff   personnel,    or    affiliated       medical,

psychiatric, or psychological consultants, if those statements

were made based on their own first-hand factual observations, at

a time reasonably contemporaneous to the facts they relate, and

in the usual course of their duties with the Division.                   However,

whether the Division report is offered under N.J.R.E. 803(c)(6),

N.J.S.A. 9:6-8.46(a)(3), Rule 5:12-4(d), or Cope, statements in

the report made by any other person are inadmissible hearsay,

unless they qualify under another hearsay exception as required

by N.J.R.E. 805.        Expert diagnoses and opinions in a Division

report     are    inadmissible      hearsay,   unless        the    trial      court

specifically finds they are trustworthy under the criteria in

N.J.R.E.    808,    including    that   they   are     not    too   complex       for




                                        3                                   A-1008-14T4
admission      without    the    expert        testifying   subject      to     cross-

examination.

    Here,        Mother's       statements         were     admissible         against

Stepfather because they qualified under the hearsay exception

for statements against interest.                N.J.R.E. 803(c)(25).          However,

the trial court did not make the findings required by N.J.R.E.

808, and the non-testifying psychologist's complex diagnoses and

opinions were inadmissible hearsay.                Because the psychologist's

diagnoses and opinions were the linchpin of the trial court's

opinion, and because the Division's other evidence of harm to

J.V. was less than overwhelming, we vacate and remand for a new

fact-finding hearing.

                                          I.

    Mother gave birth to J.V. in 2006.1                     Mother subsequently

married Stepfather, and in 2013 they had a son, N.A.T.                             They

divorced before the fact-finding hearing.

    In 2013, plaintiff, the Division of Child Protection and

Permanency     (Division),      filed     a     complaint    alleging     abuse       or

neglect   of    both     J.V.   and   N.A.T.      by   Mother   and   Stepfather.

However, the Division ultimately sought a fact-finding only as

to Stepfather regarding J.V.


1
  J.V.'s biological father, defendant J.A.V., was believed to
reside in Florida, and did not appear in these proceedings.



                                          4                                   A-1008-14T4
      At the fact-finding hearing, the Division called only one

witness, Division intake worker Kevin Ginsberg, who testified as

follows.      Ginsberg     became       involved        for    a   referral    that    was

received on July 23, 2013.2              Division personnel went to the home

and   "we   interviewed         all    parties."          Ginsberg     testified      that

Stepfather     and     Mother    denied       there     was    any   current    domestic

violence, but "admitted there had been some issues in the past."

However, Ginsberg testified that J.V. "did tell me that his

daddy [Stepfather] did hold a mommy [sic] [knife] up to mommy."

The   seven-year-old       J.V.       could       not   tell   when    that    happened,

saying both "20 days ago" and "20 years ago," so the Division

personnel left the home after Mother and Stepfather agreed to

get therapy.3

      A second referral was received                     from Mother on July 27,

2013.       Over   a   hearsay        objection,        Ginsberg     testified    Mother

"reported" the following: Mother had lied to the Division during

the previous interview because she was afraid to speak freely in

front of Stepfather.            Since then, he told her that if she left


2
  Ginsberg testified that the July 23 referral occurred after
J.V. told a teacher that "his dad had held a knife up to his
mother." After a hearsay objection, the Division requested that
this be considered as background information, not for its truth.
3
  On cross-examination, Ginsberg admitted that the knife incident
likely had been raised in prior referrals which the Division had
deemed "unfounded" and "not substantiated."



                                              5                                  A-1008-14T4
he would burn the house down.                She later left the home with

J.V., because they were afraid of Stepfather.                      Stepfather had

assaulted Mother, bruised her legs, choked her, punched her in

the face, and held her face in the couch.                    He had put a knife to

her neck and head.        He originally committed these acts in front

of the children, but more recently he told the children to go to

their rooms during these acts.                Mother obtained a temporary

restraining order (TRO).

      The Division received a third referral on September 23,

2013.4      Ginsberg   testified    that          a   police    officer    told   him

Stepfather was allowed back in the home.5                    Ginsberg went to the

home with the officer and knocked on the front door.                      A neighbor

yelled to Ginsberg and the officer that Stepfather had just fled

out the back door and was running down the street with N.A.T. in

his arms.     Ginsberg observed J.V. walking towards the home from

the   street.      J.V.    said    he       had       been   walking   around     the

neighborhood with no one watching him.




4
  The referral occurred when J.V. told school personnel that
Stepfather was back in the home. After a hearsay objection, the
Division requested the testimony be considered as background
information, not for its truth.
5
  The Division became aware that the TRO had been dismissed and
replaced with civil restraints that did not restrict Stepfather
from being in the home.



                                        6                                   A-1008-14T4
       Over a hearsay objection, the trial court admitted Exhibit

P-1,   an    Investigation       Summary    (Summary)         written    by   Ginsberg.

The Summary included an interview by another Division worker,

("buddy interview") of J.V. on July 27.                      In the interview, J.V.

stated as follows.              J.V. was scared of his "dad" because a

"couple of days ago" J.V. "saw daddy put a knife to mommy's

throat."      Stepfather hit Mother, making J.V. "sad and scared."

J.V. did not feel safe at home and wanted his "daddy to go

away."      The Summary also included a buddy interview of Mother on

July 27, in which Mother stated that Stepfather put a knife to

her throat in front of the children "about 3 days ago," and that

the domestic violence had been going on for some time.

       Over a hearsay objection, the trial court admitted Exhibit

P-2, the Psychological Evaluation (Evaluation) of J.V. by Dr.

Jennifer     L.   Perry,    a    licensed       psychologist.          The    Evaluation

related that Mother stated the following to Dr. Perry.                             There

had been over 100 occurrences of domestic violence in her three-

year relationship with Stepfather, and J.V. had witnessed much

of   the    domestic   violence     in     the       home.     There    had    been   "an

incident involving a knife approximately two years ago," and

J.V.   was    confused     about    when        it    occurred.        J.V.    told   his

grandmother he had nightmares about Stepfather putting the knife

to   Mother's     throat.        J.V.    had     behavioral       issues,     including




                                            7                                   A-1008-14T4
aggression,     which       had      started      before        Mother   began    her

relationship with Stepfather.

      The Evaluation also reported that J.V. stated the following

to Dr. Perry.         Stepfather often yelled, once grabbed Mother's

arm, and "hurt mommy with a knife."                Mother "was so lucky she's

still alive."        J.V. forgot about his nightmares.                   He drew a

picture, explaining: "My dad is trying to get a knife on mommy.

And I sawed the whole thing.            He tried to hurt her."

      The Evaluation related Dr. Perry's findings that J.V. had

witnessed   and      been    exposed    to     significant       domestic   violence

between   Mother      and    Stepfather,       that    J.V.     evidenced   symptoms

often seen in children who had experienced trauma, and that J.V.

had   post-traumatic        stress     disorder       (PTSD).      Dr.   Perry   also

diagnosed     J.V.    with     Attention-Deficit/Hyperactivity              Disorder

(ADHD),   and   provisionally         with     Oppositional       Defiant   Disorder

(ODD), but added that such problems "can result from exposure to

traumatic experiences and frequently overlap with symptoms of

PTSD, especially when the exposure to violence is chronic and

affects all family members."

      In its oral opinion, the trial court found that Stepfather

had committed domestic violence against Mother.                     The court found

this caused actual harm to J.V., based on Dr. Perry's report:

            [H]ere     we have proof of [the detrimental
            effect     upon the child] clearly from the



                                          8                                 A-1008-14T4
            report of Dr. Perry.       She diagnoses the
            child with post-traumatic stress disorder
            which she connects to the child's witnessing
            of domestic violence in the home . . . .
            And   she  says   that   this  is  a   common
            experience with children who have seen
            domestic violence in their home and have
            been   exposed  to   it.      And  she   very
            specifically relates the . . . post-
            traumatic stress disorder to his witnessing
            the domestic violence.

    In its April 2, 2014 order, the trial court found that

Stepfather abused or neglected J.V.        On September 12, 2014, the

court terminated the Title Nine litigation.            Stepfather then

appealed.

                                 II.

    Before considering Stepfather's claims, some background is

necessary.     N.J.S.A.   9:6-8.21(c)(4)    defines   an   "[a]bused    or

neglected child" to include

            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[.]

    Our Legislature has declared that "children, even when they

are not themselves physically assaulted, suffer deep and lasting

emotional effects from exposure to domestic violence."         N.J.S.A.

2C:25-18.    This legislative declaration "does not and can not



                                  9                             A-1008-14T4
constitutionally be held to substitute for the fact-finding of

the family court."          N.J. Div. of Youth & Family Servs. v. S.S.,

372 N.J. Super. 13, 25 (App. Div. 2004), certif. denied, 182

N.J. 426 (2005).        However, abuse or neglect can be shown where

the Division presents "credible evidence that professionals in

the field accept the general proposition that domestic violence

in the home harms children and that harm had occurred in this

family."     N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J.

Super. 551, 584-85 (App. Div. 2010).                     In I.H.C., the Division

presented    live    expert       testimony      which   "was   supported        by    the

factual    evidence,        especially      the    manifestation      of     abuse      or

neglect in the child['s] behavior and development," including

"aggression" displayed by the child.                Id. at 563, 586.

                                         III.

    We      first    reject        Stepfather's     constitutional         challenge.

Stepfather     claims       the     trial    court's      admission     of       hearsay

evidence     violated       the     Confrontation        Clause    of      the      Sixth

Amendment to the Constitution, and                  ran afoul of Crawford v.

Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177

(2004).     We disagree.          The Sixth Amendment grants the right to

confrontation       "[i]n    all    criminal      prosecutions."        U.S.      Const.

amend VI.     Thus, "[t]he Sixth Amendment right of confrontation

is not applicable to civil proceedings."                   N.J. Div. of Youth &




                                            10                                   A-1008-14T4
Family   Servs.      v.    V.K.,     236    N.J.     Super.       243,   253    (App.      Div.

1989),    certif.         denied,     121     N.J.     614      (1990).         Similarly,

"Crawford's hearsay protections derive from the Confrontation

Clause of the Sixth Amendment to the United States Constitution,

which pertains to 'criminal prosecutions,' not to civil trials."

See N.J. Div. of Youth & Family Servs. v. M.C. III, 405 N.J.

Super. 24, 38 (App. Div. 2008), rev'd on other grounds, 201 N.J.

328 (2010).        A Division "worker acting in a proper civil role

does   not    trigger      considerations          that   are      unique      to    criminal

trials, including the Confrontation Clause" and Crawford.                                State

v. Buda, 195 N.J. 278, 307 (2008).

                                             IV.

       We next address Stepfather's claim that the admission of

hearsay violated the Rules of Evidence.                      "The general rule as to

the admission or exclusion of evidence is that '[c]onsiderable

latitude is afforded a trial court in determining whether to

admit evidence, and that determination will be reversed only if

it constitutes an abuse of discretion.'"                           State v. Kuropchak,

221    N.J.   368,      385    (2015)      (citation      omitted).            "Under      that

standard,     an    appellate        court    should      not      substitute        its     own

judgment for that of the trial court, unless 'the trial court's

ruling   "was      so   wide    of   the     mark    that     a    manifest         denial    of




                                             11                                       A-1008-14T4
justice resulted."'"     Ibid. (citations omitted).       We must hew to

that standard of review.

                                    A.

    Stepfather claims that the trial court's admission of the

Evaluation and the Summary violated N.J.R.E. 802 because they

contain   inadmissible   hearsay.        Preliminarily,   we   review   the

standards for admitting such Division reports.

    Since our 1969 decision in In re Guardianship of Cope, 106

N.J. Super. 336 (App. Div. 1969), courts have stated that "the

Division may submit into evidence 'reports by [Division] staff

personnel . . . prepared from their own first-hand knowledge of

the case, at a time reasonably contemporaneous with the facts

they relate, and in the usual course of their duties with the

[Division].'"   N.J. Div. of Youth & Family Servs. v. A.W., 103

N.J. 591, 595 n.1 (1986) (emphasis added) (quoting Cope, supra,

106 N.J. Super. at 343).       "Such reports containing a worker's

first-hand knowledge of the case are treated by the courts as

'supply[ing] a reasonably high degree of reliability as to the

accuracy of the facts contained therein.'"         In re Herrmann, 192

N.J. 19, 38 n.6 (2007) (quoting A.W., supra, 103 N.J. at 595 n.1

(quoting Cope, supra, 106 N.J. Super. at 344)).

    In Cope, we concluded that

           in cases of this type the [Division] should
           be  permitted  to   submit  into  evidence,



                                    12                            A-1008-14T4
             pursuant to Evidence Rules 63(13) and 62(5),
             reports by [Division] staff personnel (or
             affiliated    medical,     psychiatric,    or
             psychological consultants), prepared from
             their own first-hand knowledge of the case,
             at a time reasonably contemporaneous with
             the facts they relate, and in the usual
             course of their duties with the [Division].

             [Cope, supra, 106 N.J. Super. at 343.]

The   Evidence       Rules    cited       in    Cope   are    the    predecessors        of

N.J.R.E.     803(c)(6)       and    801(d).         "N.J.R.E.       803(c)(6)      is    the

business-records          exception       to    the    hearsay      rule    and     801(d)

defines the word business to 'include[] every kind of business,

institution,        association,         profession,    occupation         and    calling,

whether     or      not     conducted      for      profit,    and     also       includes

activities of governmental agencies.'"                        M.C. III, supra, 201

N.J. at 347 (quoting N.J.R.E. 801(d)).

      In    1974,    in     its    act    creating     N.J.S.A.      9:6-8.21      through

-8.73      (Title     9),     the    Legislature        included       N.J.S.A.         9:6-

8.46(a)(3), which provides that in any hearing under Title 9,

             any writing, record or photograph, whether
             in the form of an entry in a book or
             otherwise, made as a memorandum or record of
             any condition, act, transaction, occurrence
             or event relating to a child in an abuse or
             neglect proceeding of any hospital or any
             other public or private institution or
             agency shall be admissible in evidence in
             proof of that condition, act, transaction,
             occurrence or event, if the judge finds that
             it was made in the regular course of the
             business of any hospital or any other public
             or private institution or agency, and that



                                               13                                 A-1008-14T4
            it was in the regular course of such
            business to make it, at the time of the
            condition, act, transaction, occurrence or
            event,   or    within    a   reasonable   time
            thereafter, shall be prima facie evidence of
            the facts contained in such certification.
            A certification by someone other than the
            head of the hospital or agency shall be
            accompanied by a photocopy of a delegation
            of authority signed by both the head of the
            hospital or agency and by such other
            employees.   All other circumstances of the
            making   of   the    memorandum,   record   or
            photograph,   including    lack  of   personal
            knowledge of the making, may be proved to
            affect its weight, but they shall not affect
            its admissibility[.]

            [N.J.S.A. 9:6-8.46(a)(3) (emphasis added).]

       "Although    [N.J.S.A.     9:6-8.46(a)(3)'s]        phrase    'in      the

regular    course   of    business'   is   not   defined   in   Title   9,    our

courts have suggested that the phrase should be interpreted as

identical to the meaning of that phrase in the business-records

exception to the hearsay rule."            M.C. III, supra, 201 N.J. at

346.      Thus, such a report is admissible under N.J.S.A. 9:6-

8.46(a)(3) "provided it meets certain admissibility requirements

akin to the business records exception."             N.J. Div. of Youth &

Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011).

       In 1975, our Supreme Court adopted Rule 5:7A-4(d) (now Rule

5:12-4(d)) "to implement the 1974 revision of                   Chapter 4C of

Title 30."      See      R. 5:7A-4(d) (1976); Pressler,          Current N.J.

Court Rules, comment on R. 5:7A-1 to -7 (1976).                   As amended,




                                      14                                A-1008-14T4
Rule 5:12-4(d) provides: "The Division of Child Protection and

Permanency (the 'Division') shall be permitted to submit into

evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by

staff personnel or professional consultants.                      Conclusions drawn

from the facts stated therein shall be treated as prima facie

evidence, subject to rebuttal."             R. 5:12-4(d).

    Thus, as under Cope and N.J.S.A. 9:6-8.46(a)(3), "a report

offered into evidence under Rule 5:12-4(d) may be admitted only

if it satisfies the prerequisites for admissibility set forth in

N.J.R.E. 803(c)(6)."             N.J. Div. of Youth & Family Servs. v.

B.M.,   413    N.J.     Super.   118,   131     (App.    Div.   2010).      N.J.R.E.

803(c)(6) provides:

              A statement contained in a writing or other
              record of acts, events, conditions, and,
              subject to Rule 808, opinions or diagnoses,
              made at or near the time of observation by a
              person   with    actual  knowledge   or  from
              information supplied by such a person, 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
              it, unless the sources of information or the
              method,    purpose    or   circumstances   of
              preparation    indicate   that   it   is  not
              trustworthy.

    Accordingly, to be admissible as a business record of the

Division,      a   Division       report    must    be     shown     to   meet     the

requirements       of    N.J.R.E.    803(c)(6),         whether     the   report    is

offered under N.J.S.A. 9:6-8.46(a)(3), Rule 5:12-4(d), or Cope.




                                           15                               A-1008-14T4
N.J.S.A. 9:6-8.46(a)(3), Rule 5:12-4(d), and Cope provide that

certain evidence is "prima facie evidence," subject to rebuttal.

N.J.S.A. 9:6-8.46(a)(3); Rule 5:12-4(d); Cope, supra, 106 N.J.

Super. at 344.       As set forth below, they also authorize the

admission of certain statements contained within an admissible

Division report.      However, they do not otherwise remove the need

for a Division report to satisfy the hearsay rules.

                                     B.

    We first address the Summary.            Ginsberg testified that he

wrote   the    Summary   with   personal    knowledge       of   the   described

events and in the normal course of business of the Division, and

that it was the normal course of business for the Division to

make such records.       The trial court admitted the Summary based

on the Division's citation to N.J.S.A. 9:6-8.46(a)(3).

    The    legislative    history   of     Title   9   is   silent     regarding

N.J.S.A. 9:6-8.46(a)(3), but we believe the Legislature enacted

it to address the concerns we expressed in Cope just a few years

earlier:

              [A] rule requiring all [Division] personnel
              having contact with a particular case to
              give live testimony on all the matters
              within their personal knowledge would cause
              an intolerable disruption in the operation
              of the [Division].

              As a result, it becomes necessary to allow
              certain evidence to be produced in a hearsay
              form[.]



                                     16                                 A-1008-14T4
            [Cope, supra, 106 N.J. Super. at 343.]

Similarly,     Rule   5:12-4(d)     "recognizes    the       Division's   need   to

secure   the     services      of    a    range    of    professionals        when

investigating a claim of child abuse."                  M.C. III, supra, 201

N.J. at 348.

    Therefore,        if   a   Division       report    is     admissible    under

N.J.R.E. 803(c)(6), and meets the standards of N.J.S.A. 9:6-

8.46(a)(3), Rule 5:12-4(d), or Cope, those authorities allow the

admission of the evidence we described in Cope, namely factual

statements in the report made to the author by Division "staff

personnel (or affiliated medical, psychiatric, or psychological

consultants), [made based on] their own first-hand knowledge of

the case, at a time reasonably contemporaneous with the facts

they relate, and in the usual course of their duties with the"

Division.    Cope, supra, 106 N.J. Super. at 343.6




6
   We do not suggest that Rule 5:12-4(d) itself authorizes
admission.   We have refused "to construe a court rule such as
Rule 5:12-4(d), which was adopted without participation by the
Legislature in accordance with the Evidence Act of 1960, as
having been intended to adopt an additional exception to the
rule against hearsay." B.M., supra, 413 N.J. Super. at 132; see
also N.J.S.A. 2A:84A-33 to -44.



                                         17                               A-1008-14T4
       Thus,      we    agree       that       the       Summary    was         admissible    to    the

extent that it related the first-hand observations of Ginsberg

and other Division workers.7

       However,         the    Summary          also       related          statements       made    to

Ginsberg and other Division workers by non-Division personnel,

particularly J.V. and Mother.                            Cope stated that, "[a]s to oral

or written reports from neighbors, the police or other persons,

the    usual      rules       governing         admissibility              of    hearsay     evidence

should apply."            Cope, supra, 106 N.J. Super. at 344.                                  Those

hearsay rules provide that "[a] statement within the scope of an

exception to Rule 802 shall not be inadmissible on the ground

that it includes a statement made by another declarant which is

offered      to   prove       the    truth          of    its    contents         if   the   included

statement itself meets the requirements of an exception to Rule

802."       N.J.R.E. 805.

       As a result, even if a document "is admissible as a record

of regularly conducted activity," statements by others reported

by    the    author      of    the    document            "are     'hearsay-within-hearsay,'

each    level      of     which      .     .    .     requires         a    separate     basis      for

admission into evidence."                      Estate of Hanges v. Metro. Prop. &

Cas.    Ins.      Co.,    202       N.J.       369,       375    n.1       (2010).      A    "hearsay


7
  Stepfather has not disputed                            that    the       Summary     was   prepared
reasonably contemporaneously.



                                                     18                                      A-1008-14T4
statement[]   embedded   in    Division   records"   from     persons    other

than Division personnel and affiliated professional consultants

"may not be admitted unless it satisfies an exception to the

hearsay rule."     N.J. Div. of Child Prot. & Permanency v. B.O.,

438 N.J. Super. 373, 385 (App. Div. 2014).           The trial court must

"fully assess the evidential issues inherent in the Division's

submission of documents which include statements by others than

Division workers."       N.J. Div. of Child Prot. & Permanency v.

R.W., 438 N.J. Super. 462, 468 (App. Div. 2014).

    Accordingly,     whether    a   Division   report   is    offered    under

N.J.R.E. 803(c)(6), N.J.S.A. 9:6-8.46(a)(3), Rule 5:12-4(d), or

Cope, statements in the report by persons other than Division

staff personnel and affiliated professional consultants who are

reporting their factual observations are inadmissible hearsay

unless they qualify under another hearsay exception as required

by N.J.R.E. 805.

    The trial court properly admitted J.V.'s statements to the

buddy interviewer in the Summary under N.J.S.A. 9:6-8.46(a)(4).

That subsection provides that "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."       Ibid.




                                     19                              A-1008-14T4
       The trial court admitted Mother's statements to the buddy

interviewer     in   the   Summary,     because    they   were   against    her

interest as a party to the litigation.8            The court found Mother's

statements were "against her interest because she is reporting

to the Division that there's domestic violence in her home for

which the children could be removed from her."              The court noted

that   Mother   "lied      to   the   caseworker    about   whether    it   was

occurring so it's against her interest now to admit it."

       Statements    against     interest   are    addressed     in   N.J.R.E.

803(c)(25), which excludes from the rule barring hearsay

           [a] statement which was at the time of its
           making so far contrary to the declarant's
           pecuniary, proprietary, or social interest,
           or so far tended to subject declarant to
           civil or criminal liability, or to render
           invalid declarant's claim against another,
           that a reasonable person in declarant's
           position would not have made the statement
           unless the person believed it to be true.

       "The statement-against-interest exception is based on the

theory that, by human nature, individuals will neither assert,

8
   The Division also argued that Mother's statements were
admissible as an admission of a party-opponent under N.J.R.E.
803(b).    However, that rule permits the admission of "[a]
statement offered against a party" only if it is "the party's
own statement," adopted or authorized by that party, or made by
that party's agent or co-conspirator.          N.J.R.E. 803(b).
Mother's accusations that Stepfather committed domestic violence
fell into none of those categories.    See N.J. Div. of Youth &
Family Servs. v. H.P., 424 N.J. Super. 210, 227 (App. Div. 2011)
("any statements made by defendant's wife could not constitute
defendant's admissions").



                                       20                             A-1008-14T4
concede, nor admit to facts that would affect them unfavorably.

Consequently,       statements     that    so    disserve      the    declarant      are

deemed inherently trustworthy and reliable."                        State v. White,

158 N.J. 230, 238 (1999) (citations omitted).                       "The analysis of

this issue must initially distinguish statements that exculpate

the declarant from liability by shifting blame to another — such

statements      are     inherently        self-serving         and     presumptively

unreliable."        Id. at 239.

    Mother's statement that she lied to the Division when she

claimed there was no current domestic violence was                           a direct

statement against interest.              Mother's remaining statements were

indirectly against her interest.                 Her statements detailing the

domestic violence could help prove that she had lied to the

Division.       Those       statements,     and       her   statements      that     the

children had witnessed the domestic violence, also could help

prove   an    allegation      by   the    Division      that    Mother      abused    or

neglected     the     children     by    allowing      them    to    be    exposed    to

domestic violence.           See, e.g., N.M., supra, 438 N.J. Super. at

420-21; S.S., supra, 372 N.J. Super. at 15.

    Of       course,    while      Mother's      statements         were    indirectly

against her interests, they could also be viewed as serving her

interests,     as    they    directly     accused     Stepfather      of    committing

domestic     violence       against     Mother   in    front    of    the   children.




                                          21                                  A-1008-14T4
Moreover,     Stepfather         contends          Mother,    who        was    in     divorce

proceedings        against      Stepfather,          had     motivations         to     accuse

Stepfather of domestic violence.

       "The extent to which statements or portions of statements

that    are   not       explicitly     incriminating          may    fall        within      the

statement-against-interest hearsay exception . . . has long been

debated."     White, supra, 158 N.J. at 238-39 (citing Williamson

v. United States, 512 U.S. 594, 611-12, 114 S. Ct. 2431, 2440-

41, 129 L. Ed. 2d 476, 490-91 (1994) (Kennedy, J., concurring)).

Our    Supreme      Court      has   decided        that     "statements         that      only

indirectly inculpate the declarant . . . can be admissible as

statements against interest" if, "as a related part of a self-

inculpatory         statement,         they        strengthen       or         bolster       the

incriminatory       effect      of   the     declarant's       exposure         to    criminal

liability."        White, supra, 158 N.J. at 239, 244.9                    "Evidence that

[a     statement        was]   possibly       tainted        by     an     impure       motive

appropriately bears only on its value."                        State v. Abrams, 140

N.J. Super. 232, 236 (App. Div. 1976), aff'd o.b., 72 N.J. 342

(1977).       Moreover,        there    is    "no     rule    that       eviscerates         the

character     of    a    statement      against       penal       interest       and    denies

9
  Cf. Williamson, supra, 512 U.S. at 600-01, 114 S. Ct. at 2435,
129 L. Ed. 2d at 483 (holding that the federal statements-
against-interest exception "does not allow admission of non-
self-inculpatory statements, even if they are made within a
broader narrative that is generally self-inculpatory").



                                              22                                       A-1008-14T4
admission       of    the     statement     because        it    is     a   mixture      of

exculpatory and incriminatory statements."                      State v. Weaver, 219

N.J. 131, 158-59 (2014).

    The     admissibility           of   statements      against       interest    raises

"questions addressed in the first instance to the trial court's

sound discretion."            State v. Nevius, 426 N.J. Super. 379, 392

(App. Div. 2012), certif. denied, 213 N.J. 568 (2013).                         Here, we

cannot    say    that       the    trial   court     abused      its    discretion       in

admitting       Mother's          statements,      which        corroborated       J.V.'s

statements.          However, the concerns raised above can affect the

credibility and weight of such out-of-court statements.

                                            C.

    We next address the Psychological Evaluation.                            The trial

court    admitted       the   Evaluation         under   N.J.S.A.       9:6-8.46(a)(3)

because it was accompanied by a certification from Dr. Perry's

employee, who stated that the records were made in the regular

course of business, that it was the regular course of business

to make said records, and that the records "were made at the

time of the condition and/or occurrences reported therein or

within a reasonable time thereafter and accurately reflect the

condition and/or occurrence."                The court noted the Evaluation

was "from someone who is normally used by the Division."




                                            23                                    A-1008-14T4
    We     agree    that      the   employee's      certification     showed       the

Evaluation was admissible as a business record under N.J.R.E.

803(c)(6).      Thus,       Dr.     Perry's    factual   observations       in    the

Evaluation     were     not    inadmissible         hearsay.       Moreover,       the

statements by J.V. and Mother recorded in the Evaluation were

admissible   for      the   same     reasons   as    their     statements    in   the

Summary.

    However,        Dr.       Perry's    diagnoses       and      opinions        were

inadmissible       hearsay.          N.J.R.E.       803(c)(6)     provides        that

"opinions or diagnoses" within business records are admissible

"subject to Rule 808."            N.J.R.E. 808 provides:

            Expert opinion which is included in an
            admissible   hearsay   statement   shall  be
            excluded if the declarant has not been
            produced as a witness unless the trial judge
            finds that the circumstances involved in
            rendering the opinion, including 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,    tend   to   establish  its
            trustworthiness.

    "Therefore, when the expert is not produced as a witness,

the rule requires the exclusion of his or her expert opinion,

even if contained in a business record, unless the trial judge

makes specific findings regarding trustworthiness."                     N.J. Div.

of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 174 (App.

Div. 2012) (citing State v. Matulewicz, 101 N.J. 27, 30 (1985)).



                                         24                                 A-1008-14T4
Here,    the   trial   court    failed    to   make    the   required       specific

findings.

    In any event, "[a]n expert medical opinion contained in a

report    is   generally   inadmissible        under   [N.J.R.E.     808's]     test

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."                    B.M., supra,

413 N.J. Super. at 130; see also State v. Michaels, 219 N.J. 1,

35, cert. denied, __ U.S. __, 135 S. Ct. 761, 190 L. Ed. 2d 635

(2014).          Similarly,     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."

M.G., supra, 427 N.J. Super. at 174; see In re Commitment of

G.G.N., 372 N.J. Super. 42, 56 (App. Div. 2004) (excluding an

evaluation of mental state because it is among the most "complex

diagnoses"); Liptak v. Rite Aid, Inc., 289 N.J. Super. 199, 221-

22 (App. Div. 1996) (excluding a complex diagnosis concerning

psychological impact).

    Such subjective judgment and complexity were evident in Dr.

Perry's    diagnosis     that   J.V.     had   PTSD,   and   her    opinion      that

J.V.'s symptoms and his problems with ADHD and ODD could have

resulted from exposure to traumatic experiences like domestic




                                         25                                 A-1008-14T4
violence.     "These circumstances militated against a finding that

the     expert     opinion      contained          in    the     expert     report      was

sufficiently       trustworthy        to    be     admitted      without    the     expert

appearing and being subject to cross-examination."                         M.G., supra,

427   N.J.   Super.       at   175.        "It    was,    therefore,       an   abuse    of

discretion to admit the reports into evidence over defendant's

objection."       Ibid.

      The Division cites New Jersey Division of Youth and Family

Services v. I.Y.A., 400 N.J. Super. 77, 90-91 (App. Div. 2008),

which    repeated       language      from       Cope    that    a   report     from    the

Division's       "affiliated     medical,         psychiatric,       or   psychological

consultants"       is     admissible       and      their       "conclusion"      may     be

received if it meets certain requirements.                           Cope, supra, 106

N.J. Super. at 343-44.           However, Cope's requirements are not the

only requirements.             Since our decision in Cope, our Supreme

Court in Matulewicz established additional requirements for the

admission    of     expert     diagnoses          and    opinions     within    business

records, and those requirements were codified in N.J.R.E. 808.

See State v. Miller, 170 N.J. 417, 428 n.1 (2002); James v.

Ruiz, 440 N.J. Super. 45, 63 (App. Div. 2015); 1991 Supreme

Court Committee Report, "Analysis of Significant Rule Changes,"

129 N.J.L.J. 1, 6 (Oct. 10, 1991).                  N.J.R.E. 808 is incorporated




                                             26                                   A-1008-14T4
in N.J.R.E. 803(c)(6), which in turn has been incorporated into

N.J.S.A. 9:6-8.46(a)(3) and Rule 5:12-4(d).

       Thus, whether a Division report is offered under N.J.R.E.

803(c)(6),    N.J.S.A.       9:6-8.46(a)(3),            Rule   5:12-4(d),          or    Cope,

expert opinions and diagnoses in the report are inadmissible

hearsay   unless     the    trial      court      specifically          finds      they     are

trustworthy under the criteria in N.J.R.E. 808, including that

they   are   not    too    complex     for       admission       without       the      expert

testifying    subject       to   cross-examination.               Because       the      trial

court made no such finding, and because Dr. Perry's diagnosis

and opinion in the Evaluation are complex, admitting them over

Stepfather's       hearsay       objection        was     "wide         of     the      mark."

Kuropchak, supra, 221 N.J. at 385.10

       Accordingly, it was error to admit that hearsay evidence.

Of course, a party is free to waive objection to the admission

of hearsay evidence.            In some cases, parties may have no reason

to   question      the    accuracy     of    such       hearsay,    or       may     make   "a

strategic    decision      to    try   the       case    based     on    the    documents,

instead of possibly facing a witness's direct testimony."                                 M.C.

III, supra, 201          N.J. at 342.            But where, as here, a party


10
   Because we exclude Dr. Perry's expert opinion on hearsay
grounds, we need not address Stepfather's complaint that Dr.
Perry was never qualified as an expert at the fact-finding
hearing.



                                            27                                       A-1008-14T4
objects to the admission of hearsay in Division reports, trial

courts must follow the evidentiary rules as discussed in this

opinion.

                                     D.

    We next consider the Division's argument that admitting Dr.

Perry's diagnoses and opinions in the Evaluation was harmless

error.     We reject that argument, because Dr. Perry's diagnoses

and opinions were central to the trial court's finding of abuse

or neglect.

    The trial court expressly relied on Dr. Perry's diagnosis

that J.V. had PTSD, and her opinion that J.V.'s PTSD and other

behavioral symptoms were connected to J.V.'s witnessing domestic

violence.     Dr. Perry's diagnoses and opinions led the court to

conclude that Stepfather had "allow[ed] to be inflicted harm" on

J.V. and that J.V.'s "physical, mental, or emotional condition

has been impaired."    N.J.S.A.    9:6-8.21(c)(4).

    Thus,      the   trial   court        apparently   "ascribed    almost

determinative significance to [Dr. Perry's] opinion, which went

to the heart of the case."        Neno v. Clinton, 167 N.J. 573, 587

(2001).     A hearsay error mandates reversal where it appears

"'the error led the [factfinder] to a result it otherwise might

not have reached.'"     Id. at 586 (citation omitted).         Moreover,

overruling the hearsay objection prevented Dr. Perry's diagnoses




                                     28                            A-1008-14T4
and    opinions     from     being    tested      by    cross-examination.              Thus,

their     improper        admission     constituted          a   manifest       denial      of

justice       and   was     "'clearly      capable       of      producing      an    unjust

result,' requiring reversal."              Id. at 587 (quoting R. 2:10-2).

       We cannot "take judicial notice of the fact that domestic

violence begets emotional distress or other psychic injury in

child witnesses."           S.S., supra, 372 N.J. Super. at 25.                      "[S]uch

harm    'cannot     be    presumed    in    the    absence        of    evidence     of    its

existence or potential.'"              N.M., supra, 438 N.J. Super. at 427

(quoting S.S., supra, 372 N.J. Super. at 28).                              "[T]he act of

allowing a child to witness domestic violence does not equate to

abuse    or    neglect     of   the   child      in    the    absence      of   additional

proofs."      I.H.C., supra, 415 N.J. Super. at 584.

       Here, the statements of J.V. and Mother that J.V. was sad,

scared, and felt unsafe are not sufficiently strong or reliable

evidence      to    render      harmless    the        improper        admission     of    the

psychologist's hearsay opinions, on which the judge placed such

heavy reliance.            Moreover, the statements of Mother and J.V.

differed regarding whether J.V. had nightmares about the knife

incident, and when the knife incident occurred.                          Further, Mother

stated     that     J.V.'s      behavioral        problems        and     "outbursts         of

aggression" started before Mother's relationship with Stepfather

began.




                                            29                                       A-1008-14T4
      In addition, the reliability of the remaining evidence is

hardly ironclad, given the potential inaccuracy of a seven-year-

old's statements, N.J. Div. of Youth & Family Servs. v. N.S.,

412 N.J. Super.          593, 623 (App. Div. 2010), Mother's alleged

motive to accuse Stepfather, see State v. Provoid, 110 N.J.

Super. 547, 555-56 (App. Div. 1970), and the fact that their

statements were "'double' (sometimes 'triple') hearsay" untested

by   cross-examination,         Cope,    supra,    106     N.J.    Super.     at    344.

Under   all   the     circumstances,       the    erroneous       admission    of    Dr.

Perry's diagnoses and opinions was prejudicial.                      Accordingly, a

new fact-finding hearing is required.

                                          V.

      Finally,      we    address       Stepfather's       contention       that    the

Division presented insufficient evidence to support the trial

court's finding of abuse or neglect, thus precluding a remand

for a re-hearing of the issue.             We disagree.

      "We have a strictly limited standard of review from the

fact-findings of the Family Part judge."                      I.H.C., supra, 415

N.J. Super. at 577.         A reviewing court will not disturb a family

court's abuse or neglect findings as long as they are "supported

by adequate, substantial, and credible evidence in the record."

N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605

(2007).       "Only      when   the     trial    court's    conclusions       are    so




                                          30                                  A-1008-14T4
'clearly mistaken' or 'wide of the mark' should an appellate

court intervene and make its own findings to ensure that there

is not a denial of justice."             N.J. Div. of Youth & Family Servs.

v. E.P., 196 N.J. 88, 104 (2008) (quoting G.L., supra, 191 N.J.

at   605);    see    generally     State    v.    Johnson,     42   N.J.    146,    162

(1964).

       "The scope of our review in a non-jury case is to decide

whether the findings made could reasonably have been reached on

substantial     credible     evidence           present   in   the    record       when

considering the proofs as a whole, giving due regard to the

opportunity of the trial judge to determine credibility."                          N.J.

Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442-

43 (App. Div. 2001) (emphasis added) (citing Rova Farms Resort,

Inc.   v.    Inv'rs   Ins.   Co.    of     Am.,    65   N.J.   474,   484   (1974)),

certif. denied, 171 N.J. 44 (2002); accord Johnson, supra, 42

N.J. at 162.        Here, the Evaluation was admitted into evidence at

the fact-finding hearing, and thus was "evidence in the record"

and part of "the proofs as a whole."                      A.G., supra, 344 N.J.

Super. at 443.        In judging the sufficiency of the evidence, "a

reviewing court [must] 'consider all of the evidence admitted by

the trial court.'"       See generally State v. Gibson, 219 N.J. 227,

245 (2014) (quoting Lockhart v. Nelson, 488 U.S. 33, 41, 109 S.

Ct. 285, 291, 102 L. Ed. 2d 265, 274 (1988)).




                                           31                                A-1008-14T4
    Here, the trial court's finding that Stepfather abused or

neglected   J.V.    was    supported     by    adequate,   substantial,      and

credible evidence in the record, if Dr. Perry's diagnoses and

opinions are included.         Even ignoring that improperly-admitted

evidence,   the    Division's    other      evidence,   namely   the    hearsay

statements of Mother and J.V., might arguably have supported a

finding of "substantial risk" of harm and "imminent danger" of

impairment of J.V.'s mental or emotional condition.                    N.J.S.A.

9:6-8.21(c)(4).     Thus, we cannot say that reversal precluding a

new-fact-finding hearing "is necessary to correct an injustice."

N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448

(2012).

    However, the Division chose to prove harm and impairment by

introducing the diagnoses and opinions of a psychologist without

calling the psychologist to testify and be cross-examined.                   The

trial court relied heavily on that inadmissible hearsay to find

actual    harm    and     impairment     and    thus    abuse    or    neglect.

Accordingly, the appropriate remedy here is to remand for a new

fact-finding hearing.

    Vacated and remanded.        We do not retain jurisdiction.




                                       32                              A-1008-14T4
