                         RECORD IMPOUNDED

                    NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-2565-15T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

      Plaintiff-Respondent,
                                          APPROVED FOR PUBLICATION
v.
                                                May 22, 2017
T.U.B.,
                                             APPELLATE DIVISION
      Defendant,

and

J.E.C.,

     Defendant-Appellant.
_________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF C.I.B., a Minor.
_________________________________

          Argued April 24, 2017 – Decided May 22, 2017

          Before Judges Sabatino, Currier and Geiger.

          On appeal from Superior Court of New Jersey,
          Chancery   Division,   Family   Part,  Essex
          County, Docket No. FG-07-164-14.

          James Gentile, Designated Counsel, argued
          the cause for appellant (Joseph E. Krakora,
          Public Defender, attorney; Mr. Gentile, on
          the briefs).

          Michelle    Cort-Hourie, Deputy   Attorney
          General, argued the cause for respondent
          (Christopher S. Porrino, Attorney General,
          attorney; Andrea M. Silkowitz, Assistant
             Attorney General, of counsel;               Ms.   Cort-
             Hourie, on the briefs).

             James A. Louis, Deputy Public Defender,
             argued the cause for minor C.I.B. (Joseph E.
             Krakora, Public Defender, Law Guardian,
             attorney; Danielle Ruiz, Designated Counsel,
             on the briefs; Mr. Louis and Olivia Belfatto
             Crisp, Assistant Deputy Public Defender, on
             the brief).

             J. David Pollock argued the cause for amicus
             curiae John J. Gibbons Fellowship in Public
             Interest and Constitutional Law at Gibbons,
             P.C. (Gibbons P.C., attorneys; Lawrence S.
             Lustberg and Mr. Pollock, on the brief).

      The opinion of the court was delivered by

SABATINO, P.J.A.D.

      This appeal by a father from a final judgment terminating

his parental rights in a Title 30 guardianship case raises an

important and recurring legal issue of statutory construction.

The issue is whether the special evidentiary provision for Title

9    cases   codified    at   N.J.S.A.       9:6-8.46(a)(4),     allowing     the

admission     of    certain   hearsay       statements   by    children     about

corroborated allegations of abuse or neglect, likewise applies

in   Title   30    guardianship   cases      involving   the   termination    of

parental rights.        That hearsay exception reads, in pertinent

part, as follows:

             In any hearing under this act, including an
             administrative hearing held in accordance
             with the 'Administrative Procedure Act,'
             P.L.   1968,   c.   410  (C.   52:14B-1   et
             seq.), . . . (4) previous statements made by



                                        2                              A-2565-15T2
             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.

             [N.J.S.A. 9:6-8.46(a)(4).]

      For the reasons that follow, we conclude that the plain

meaning of this statutory provision confines the use of this

special pathway for the admission of hearsay by children to

Title 9 proceedings and does not extend to Title 30 guardianship

trials involving the termination of parental rights.                             We reach

this conclusion mindful that this hearsay exception has been

mistakenly     applied       at    times      in   the     past    in    some   Title     30

termination proceedings, albeit apparently without the benefit

of   the    rigorous    legal      analysis        and    advocacy      that    have   been

provided to us by counsel in this appeal.                         We are also mindful

that the Legislature retains the ability to adopt a curative

amendment     to     Title    30       to   extend       the   hearsay    exception       in

N.J.S.A. 9:6-8.46(a)(4) to future termination proceedings, if it

chooses to do so in the wake of this opinion.

      The    trial    court       in   this    case      impermissibly      relied     upon

hearsay statements by children that it admitted, over objection,

under N.J.S.A. 9:6-8.46(a)(4).                The hearsay involved allegations

of sexual abuse that were later in part recanted by one of the

non-testifying child declarants.                   The trial court accepted the



                                              3                                   A-2565-15T2
truth of those allegations, which were not directly corroborated

by independent admissible proof that defendant did, in fact,

sexually assault the girls.

      The evidential error appears to have affected the trial

court's assessment of whether the Division of Child Protection

and   Permanency      ("the    Division")         met   its     burden    of   proof     on

prongs one, two, and four of the termination criteria under

N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence.                                We

therefore vacate the final judgment with respect to those three

prongs,    and   remand       for     the    trial      court    to   reconsider       its

decision without reference to or reliance upon the sexual abuse

hearsay.     We affirm, however, the court's discrete findings with

respect to prong three concerning the provision of services and

the absence of other suitable relatives to serve as caretakers.

                                             I.

      This   case     hinges    upon        the   trial    court's       admission     and

reliance upon highly inculpatory hearsay statements of two non-

party female minors, J.H. ("Jenny") and S.C. ("Sandy"),1 who did

not   testify    at   the     Title    30    guardianship        trial.        The   girls

alleged that acts of sexual abuse were committed against them by


1
  We use initials and fictitious names to protect the identity
and privacy of the minors and other persons involved in this
case.




                                             4                                   A-2565-15T2
defendant J.E.C.          during a time frame when defendant and his

minor son C.I.B. ("Calvin") were living in their household with

the girls' mother, defendant's girlfriend, T.C.

      The Background

      Calvin was born in May 2008.                  His biological mother is

T.U.B., and his biological father is defendant.                     T.U.B. is the

biological       mother    of    eight     additional     children    with      other

fathers.     Defendant himself has two other children, one of whom

is an adult.        Neither of his other children lived with him at

the times relevant to this case, and they are not the subject of

this litigation.

      Before Calvin's birth, the Division had received several

reports of parental abuse and neglect of T.U.B.'s children in

her     house.      In    November       2007,   the     Division    conducted    an

emergency "Dodd" removal2 of five of T.U.B.'s children from her

home.      The    Division      received    a    sixth   referral    in   May    2008

concerning T.U.B. shortly after Calvin was born, but allowed

Calvin to remain in her home while she was offered services.

      About a year later, in May 2009, T.U.B. brought Calvin to

live with defendant and his paramour T.C., because T.U.B. was


2
  A Dodd removal is an emergent removal of a minor without a
court order pursuant to N.J.S.A. 9:6-8.21 to -8.82 known as the
Dodd Act. N.J. Div. of Youth & Fam. Servs. v. P.W.R., 205 N.J.
17, 26 n.11 (2011).



                                           5                               A-2565-15T2
unable to continue to keep Calvin in her mother's apartment.

The parents entered at that time into a case plan with the

Division,      agreeing     that      Calvin        would    remain     in    defendant's

physical custody.           Not long after that, defendant was granted

temporary physical custody of Calvin, with T.U.B.'s consent.

     Eventually, in May 2010, T.U.B. voluntarily surrendered her

custodial rights over Calvin.                      Meanwhile, Calvin continued to

reside with defendant, T.C., T.C.'s two daughters, Jenny and

Sandy, and her minor son.3

     The Two Girls' Allegations of Sexual Abuse

     In the latter part of 2010, Jenny, who was then eleven

years    old,    reported        to   a    teacher        that     defendant      had   been

sexually    abusing       both    her      and     her    sister    Sandy    on    multiple

occasions over a period of several years.                            Upon learning of

these    allegations,         the       Division          arranged     a     psychosexual

evaluation      of   defendant        by   a     psychological       expert,       Barry   A.

Katz, Ph.D.

     In his written report from 2010 based on the Division's

files,   Dr.    Katz      noted   there        were      "significant      and    extensive

contradictions       in    [Jenny's]        reporting        regarding       the    abuse."

Jenny initially reported that she had been raped by defendant.


3
  The facts and issues in the present litigation do not concern
T.C.'s minor son.



                                               6                                    A-2565-15T2
However,     she    later     informed     a       caseworker       that   defendant      had

"touched [the] inside of her panties."                          She separately told

hospital staff that he had only touched her over her clothing

and that nothing further had happened.                        In addition, Dr. Katz

noted that both Sandy and Jenny's father had denied Jenny's

claims that defendant had also molested Sandy and that the two

girls had fled T.C.'s home to go to Jenny's father's house.

Moreover, medical evaluations of the girls revealed no signs of

bruising, trauma, or injury.

       Defendant was not criminally charged with sexual wrongs or

any    other    offenses.         However,         the    Division     administratively

substantiated him for sexual molestation of Jenny.                             He denied,

and continues to deny, engaging in any sexual abuse of Jenny or

Sandy.

       Dr.   Katz    stated    in    his    2010      report    that       there    was   "no

reliable data . . . to indicate that [defendant was] a current

risk    of     sexually     acting    out      on     a   child."          Based     on   the

information then available to him, Dr. Katz found "insufficient

evidence to conclude that [defendant] was a danger to a child in

his care."         By way of qualification, Dr. Katz did comment that

"[a]dditional data would be helpful and relevant to increasing

the    accuracy     of    [his]     assessment."             That    information       could

include      details     of   the    family's         past    involvement          with   the




                                               7                                    A-2565-15T2
Division,     results    of      diagnostic      evaluations       of   the   children,

details of defendant's criminal history, and a copy of Jenny's

personal     journal    in       which    she    had    reportedly      discussed       the

abuse.

       In May 2012, the Division received a referral reporting

that   a    physical    altercation        had    taken      place    at   T.C.'s     home

between     defendant    and      Sandy's       biological     father,     T.J.        T.J.

informed     Division    investigators           that   he   had     struck   defendant

because he had been told that defendant had molested the girls.

The Division accordingly interviewed Sandy and Jenny, both of

whom claimed in their interviews to have been sexually abused by

defendant.

       Proceedings in the Family Part and Related Developments

       In   June   2012,     a    judge    in    the    Family     Part    awarded      the

Division the care and supervision, but not custody, of T.C.'s

children.      Defendant was ordered to stay out of T.C.'s home.

The court apparently was not aware that Calvin was also residing

in T.C.'s home at the time.

       On June 22, 2012, the Division received a referral from an

East Orange police officer, stating that she had responded to

T.C.'s home where T.U.B. had gone to take physical custody of

Calvin.      The officer had taken T.C. and Calvin to the police

station because T.U.B., who had not seen Calvin for more than a




                                            8                                     A-2565-15T2
year, was demanding custody, and defendant's whereabouts were

then unknown.      T.U.B. reported that she had received a message

on social media       about the fight between T.J. and defendant.

T.U.B.   further     claimed    that     she    had    seen      messages     between

defendant and Sandy.      The messages indicated to T.U.B. they were

in a relationship, and that Sandy had been pregnant and had an

abortion.4

     The Division at that point conducted a Dodd removal of

Calvin from T.C.'s residence.            It took that action because (1)

defendant's whereabouts were unknown, (2) T.C. was not the legal

guardian of Calvin, and she had an open case with the Division,

and (3) T.U.B. did not have residential custody of Calvin, had a

significant history herself with the Division, and had care and

custody of only three of her eight biological children.

     Four days later, the Division filed a complaint for custody

of Calvin, which the Family Part granted.                     The judge ordered

weekly   supervised    visitation      with     Calvin     for      all   defendants,

including T.C.     The Division referred defendant to a supervised

visitation   program    at     Reunity       House    in   East     Orange.       That

program included weekly therapeutic supervised visitation and

weekly   parenting    skills    group        sessions.        The    Division     also


4
  The messages were not moved into evidence, so there was no
appropriate proof of their contents. See N.J.R.E. 1002.



                                         9                                    A-2565-15T2
offered transportation.

      In August 2012, Calvin was evaluated at the Metro Regional

Diagnostic and Treatment Center ("RDTC") at Children's Hospital

of   New     Jersey.        The        RDTC   reported      that     Calvin      was

"developmentally       delayed    in    communication      skills,    fine    motor

skills,    problem   solving     skills,      and   personal      social   skills."

The RDTC also noted that Calvin's resource parent had reported

he   displayed     "significant        emotional    and    behavioral      problems

including temper tantrums, defiance, and oppositionality."

      In September 2012, Calvin was again evaluated by the RDTC,

which concluded he exhibited "[s]low growth – possible failure

to thrive."       The RDTC recommended that Calvin continue to see a

nutritionist, and that defendant participate in the visits and

receive parenting skills training to "improve [Calvin's] eating

behaviors and food intake," and to work on disciplinary skills.

      In November 2012, the scheduled date for a fact-finding

hearing, the Division requested that the Title 9 allegations be

withdrawn and the matter go forward instead under Title 30.                      The

Family     Part   consequently     ordered      that      the    matter    "proceed

pursuant to Title 30 as child welfare concerns exist[ed] and the

family [was] in need of . . . services."                        The court advised

counsel that at the next hearing it would "consider whether

[Calvin] should be immediately placed with [T.C.]."




                                         10                                A-2565-15T2
    On November 13, 2012, the Division received a report that

defendant was then living at T.C.'s house, despite the court's

outstanding order prohibiting him from doing so.                  However, the

girls, T.C.'s son, T.C., and defendant all denied that he was

residing there.       During its investigation, the Division learned

that Jenny was not registered for school.                T.C. was accordingly

substantiated for educational neglect.

    A     week    later,   the   Division   received     a   second   referral,

which reported that defendant had been residing in T.C.'s home

for over a month.          Although T.C., Jenny, and Sandy denied that

defendant was living there, T.C.'s son privately told a Division

supervisor, Ines Perez-Nin, that defendant had been staying at

the home two nights a week.            Because defendant had been court-

ordered     to    remain   out   of    T.C.'s   home,     the   children    were

accordingly removed by the Division from T.C.'s care on November

26, 2012.

    The following day, Perez-Nin interviewed Jenny and Sandy.

Both girls confirmed to her that defendant had been residing in

T.C.'s    home.      In    addition,   Jenny    stated    to    Perez-Nin   that

defendant had been sexually abusing her since she was seven

years old.       Sandy, meanwhile, told Perez-Nin that she had been

having sex with defendant three to four times per week.                     Sandy

further revealed that she had become pregnant the previous year,




                                       11                              A-2565-15T2
and that defendant had taken her to get an abortion.5

       Additional Expert Evaluations

       The     Division       thereafter         referred         defendant     for    an

evaluation by Dr. Mark Singer, a licensed psychologist, in April

2013.       During that evaluation, defendant "denied ever engaging

in inappropriate sexual contact with any minor [or] taking any

minor    for     any     medical     procedure      related       to   termination      of

pregnancy."           Dr.   Singer    recommended        that     defendant     complete

parenting       skills      training,   and      that    he   also     participate     in

individual therapy.

       In    addition,        the    Division      referred        defendant     for     a

psychosexual reevaluation, which was again performed by Dr. Katz

in July 2013.          In his updated 2013 report, Dr. Katz noted that

when    asked    if    he    had    taken   Sandy       for   a   medical     procedure,

defendant stated that he had taken her to a hospital, and the

doctor there told him that she had a cyst on her ovary and

5
  At defendant's later guardianship trial, the Division admitted
into evidence, without objection from defense counsel, the
medical records from that abortion procedure.       The records,
supplied with a certification from the medical office, reflected
that defendant, posing as Sandy's father, had accompanied her to
the abortion and provided consent for the fourteen-year-old to
have the procedure.    The record reflects that Sandy told the
clinic that she was pregnant because of her "boyfriend [who] is
[the] same age . . . [and] he did not make her have sex with
him."   As such, the record by its terms does not corroborate
that defendant sexually abused Sandy, although we recognize the
possibility that defendant could have persuaded Sandy to
fabricate that her boyfriend had gotten her pregnant.



                                            12                                  A-2565-15T2
surgery was performed the same day.                           Defendant told Dr. Katz

that   he    had    taken     Sandy      for    surgery       because    T.C.     could   not

drive, and she was watching her other children and Calvin.                                  He

also admitted signing the medical consent form, even though he

was not Sandy's guardian.

       Dr.    Katz        noted    in     his        reevaluation       that     there    was

"sufficient        evidence       to    conclude       that    there     [were]    concerns

regarding the risk that [defendant] may pose to a child in his

care."       Further, he stated that "[if] the children's reports

[were] accurate, then it would indicate that [defendant was] a

moderate risk offender."

       Dr. Katz considered defendant to be "a lower risk to a

child in the community, but a higher risk to a child placed in

his    care."        He    acknowledged         that     additional       data    would    be

relevant to increasing the accuracy of his assessment, including

a criminal history for defendant, a copy of Jenny's journal, and

relevant      hospital        records          for     the    children.           Dr.     Katz

recommended        that     defendant      not        have    unsupervised       visitation

until such additional data was collected and reviewed, and that

defendant engage in therapy with a professional competent in

treating sexual offenders.

       The   trial        court    ordered       defendant       to     comply    with    the

recommendations           from     Dr.    Katz's        psychosexual       reevaluation.




                                                13                                  A-2565-15T2
However, defendant resisted doing so, arguing that the Division

had     not   provided        sufficient         proof    of    the     sexual      abuse

allegations.

      Defendant was discharged from the Reunity House program for

inconsistent    attendance.            He    also    missed      numerous    parenting

skills    classes.       In    addition,         defendant     was    inconsistent      in

attending     supervised       visits       with    Calvin,     and     he   eventually

stopped visits altogether.              At a family team meeting in April

2014,    defendant   did       agree    to       comply   with       parenting    skills

classes, individual therapy, and supervised visitation.                            Again,

he did not follow through.

      Meanwhile, Calvin's resource parent withdrew her interest

in adopting him after having initially expressed interest in

doing so.     The Division consequently changed its plan for Calvin

to "select home adoption," anticipating the possibility that a

different adoptive parent or family might materialize.6

      Although T.U.B. temporarily sought custody of Calvin, that

effort ultimately failed when she lost her housing, and she,

too, did not visit him.           At an October 2014 permanency hearing,




6
  The resource parent later renewed her interest in becoming an
adoptive parent.   However, as of the time of oral argument of
this appeal, counsel confirmed to us that Calvin's status was
"select home adoption," there being no adoptive parent presently
in the wings.



                                            14                                   A-2565-15T2
the trial court consequently approved the Division's plan to

terminate the parental rights of both defendant and T.U.B.

      The Guardianship Trial and Defendant's Hearsay Objections

      The     lengthy    guardianship          trial     took     place     over       ten

intermittent trial days from February 2015 through January 2016.

The Division presented expert testimony from Dr. Elizabeth M.

Smith, a licensed psychologist, and Dr. Katz.                     The Division also

presented     factual   testimony       from    caseworker       Emerald        Irby    and

supervisor Perez-Nin, who recounted the Division's investigation

and   efforts    concerning      Calvin    and     the    family.         The    alleged

victims of sexual abuse, Jenny and Sandy, did not testify.                             None

of the testifying witnesses had any personal knowledge regarding

the truth of the girls' sexual abuse allegations.

      During     the    course    of     the     trial,        defendant's       counsel

objected to the admission of the hearsay allegations of sexual

abuse by Jenny and Sandy contained in four of the Division's

exhibits,      specifically      P-22,     P-53,       P-58,    and    P-122.           The

Division    countered     that    the     girls'    hearsay       allegations          were

admissible under N.J.S.A. 9:6-8.46(a)(4), and that they had been

sufficiently corroborated.

      After    considering    written      arguments       by    the   parties,         the

trial judge overruled defendant's objection.                     The judge reasoned

that Title 9 and Title 30 should be "construed together as a




                                          15                                     A-2565-15T2
unitary     and   harmonious     whole"     and,   therefore,    the   hearsay

exception    of   N.J.S.A.     9:6-8.46(a)(4)      was   applicable    to   this

termination proceeding.          The judge clarified that the admission

of the girls' hearsay statements did not diminish the Division's

ultimate burden of establishing the criteria for termination by

clear and convincing proof.          Defendant later objected to similar

hearsay from the girls being presented through testimony from

Perez-Nin, an objection which the court likewise overruled.

      The   subject   of   the    girls'    sexual   abuse   allegations     was

addressed at considerable length in Dr. Katz's trial testimony.

Dr. Katz acknowledged that when he had conducted defendant's

initial evaluation five years earlier in November 2010, he found

it significant that Jenny had recanted parts of her allegations

and that there was "non-corroborating information in the record

about her reporting."        Even so, Dr. Katz pointed out that it was

not   uncommon      for    victims     to    recant      abuse   allegations,

"especially when other family members may not believe or be

supportive of the allegation."

      Dr. Katz went on to discuss his reevaluation of defendant

in July 2013, which included the allegation that defendant had

taken Sandy to get an abortion.              As a preliminary point, Dr.

Katz found it significant that defendant had violated a court

order by returning to T.C.'s home.             The expert also noted that




                                      16                               A-2565-15T2
defendant had provided contradictory responses about whether he

had taken Sandy to a medical facility for the purpose of an

abortion.

       Later   during   Dr.     Katz's    trial       testimony,   the   Division

questioned him about Sandy's medical records from her abortion,

documents he had not reviewed earlier for his 2013 report.                     Dr.

Katz    testified    that     those      records,       in   his   opinion,    did

"corroborate     [Sandy's]      report        and     contradict   [defendant's]

report as well as corroborate her allegation of this sexual

abuse."     He testified these records were "significant" because

the corroboration of Sandy's abortion account "would confirm and

strengthen     the   opinions    of   the      2013    report   and   given   much

greater confidence regarding the child's reporting regarding –

and raising [defendant's] risk."              Dr. Katz concluded that based

on these records, defendant could not provide a safe home now or

in the foreseeable future.

       The Law Guardian did not introduce evidence nor offer any

witnesses at trial.           Nor did T.U.B., who did not appear at

trial.7


7
  As we have noted, T.U.B. executed an identified surrender of
her parental rights before the trial, but the court later
vacated T.U.B.'s surrender after Calvin was removed from his
foster parent.   For a period of time, T.U.B. participated in
visitation with Calvin, but she ultimately became noncompliant.
The Division presented evidence at the guardianship trial
                                                    (continued)


                                         17                              A-2565-15T2
     In        his      own    case-in-chief,           defendant         called        Laura

Montgomery, a licensed clinical social worker who was Calvin's

therapist,       and     attempted    to     call     T.C.    Montgomery          testified

that,     in     response      to    an     inquiry    from     Perez-Nin,        she     had

recommended          that   visitation       for    defendant      not    be     reinstated

because she believed the visits would be disruptive to Calvin.

Defendant argued in summation that Montgomery's testimony helped

to explain, in a benign manner, why he had stopped visiting

Calvin.

     Over       the    Division's         objection,    defendant        proffered       that

T.C. would provide limited testimony that Jenny was currently

residing with defendant and T.C., allegedly with no problems.

Defense        counsel      argued   such      testimony      from       T.C.    would     be

relevant       "in    large   part    due     to    allegations      that       [defendant]

sexually assaulted" Jenny.8

     The judge disagreed, and excluded T.C.'s testimony.                                  She

ruled that the sexual abuse allegations were not the "only"

allegations       against      defendant,      and     that   by    allowing       T.C.    to



(continued)
specifically tailored to T.U.B., and ultimately the judge
terminated her parental rights as well as defendant's. T.U.B.
has not appealed her termination.
8
   Although the Law Guardian supported the termination of
defendant's parental rights, she agreed with defense counsel
that T.C. should be permitted to testify.



                                              18                                   A-2565-15T2
testify it would "open[] up a can of worms."               The judge found

where Jenny was then currently living was not "part of this

case," and that T.C.'s testimony would "open[] up many things

going back to the allegations of the sexual abuse which are not

part of this hearing."

       Defendant did not present any further evidence, and he did

not testify.

       The Trial Court's Termination Decision

       The   trial   judge   issued     a    lengthy   written   opinion     on

February 10, 2016, concluding that the Division had met its

burden by clear and convincing evidence to satisfy all four

prongs for termination set forth in N.J.S.A. 30:4C-15.1(a).

       With respect to the first prong of proven endangerment,

N.J.S.A.     30:4C-15.1(a)(1),     the       judge   commented   on   several

things.      First, the judge noted that Calvin had been removed by

the Division from the home because defendant's whereabouts were

then   unknown.      She   found   it    significant    that   defendant    had

improperly left Calvin in T.C.'s care, even though she did not

have legal custody over him and had no authority to act as his

custodian in an emergency situation.             The judge also noted that

Calvin had developmental delays and other special needs, which

were not being addressed until the Division had intervened.

       Most significantly with respect to the present appeal, the




                                        19                            A-2565-15T2
trial    judge    emphasized    that     defendant      was   "a    [s]ubstantiated

perpetrator of sexual abuse."                 The judge accepted as true the

hearsay allegations of Jenny and Sandy concerning that alleged

abuse.

      Specifically, the judge found that defendant's behavior "in

repeatedly       sexually    abusing     [Jenny   and    Sandy]     three   to    four

times a week each . . . demonstrate[d] a consistent pattern of

egregious acts of abuse or neglect that [the court could] not

and [would] not ignore."               (Internal quotation omitted).                She

added that the court did "not need to wait for [defendant] to

continue his pattern of egregious child abuse by making [Calvin]

his next victim."9          The judge also noted the risks of re-offense

by   defendant     identified     in    Dr.    Katz's   evaluations      and     trial

testimony, as well as his failures to comply with therapy and

other programs that might address and abate those risks.

      Apart      from   these   facets    relating      to    the   alleged    sexual

abuse, the judge also underscored defendant's failure to attend

parenting skills classes and avail himself of other services


9
  At oral argument on appeal, the Deputy Attorney General
acknowledged that there is no specific evidence in the record
that this defendant has a proclivity to sexually abuse a male
child.   Nor is there evidence in the record that defendant
sexually abused either of the two girls in Calvin's presence.
That said, we by no means discount the serious potential risks
of harm to Calvin if the allegations of sexual abuse by the
minor females are indeed true.



                                          20                                  A-2565-15T2
offered     by     the      Division.            The    judge        lamented         defendant's

repeated failures to attend supervised visitations with Calvin,

noting that defendant had not visited his son since April 2014,

a gap of almost two years.                       She also pointed out defendant's

failure to obtain suitable housing.                               The judge credited Dr.

Smith's     testimony          that       these      failures           had    contributed         to

Calvin's       ongoing      behavioral          issues.           The     judge       specifically

found that Calvin had "endured great emotional harm due to being

displaced from his parents for over three years[.]"

      These      findings       as    to     prong      one       supplied           corresponding

support for the judge's conclusion on prong two that defendant

was   unwilling        or   unlikely       to     eliminate         the       risk    of   harm   to

Calvin    in     the     future.          N.J.S.A.      30:4C-15.1(a)(2).                  On    this

prong,     the     judge       again       pointed          to,     among       other      things,

defendant's       failures       to       comply       with       the    therapy        and     other

services,        participate         in    visitation,            obtain       stable      housing

separate from T.C., and participate in a bonding evaluation.

      Addressing         the    third      prong       of     the       termination        statute,

N.J.S.A. 30:4C-15.1(a)(3), the judge concluded that the Division

had made reasonable efforts to provide services to defendant and

Calvin.        In addition, she found under prong three that "[t]he

Division       fully     assessed         the     relative          caretakers         that     were

offered and all were ruled out."




                                                21                                         A-2565-15T2
      Finally, the judge concluded under the fourth prong of the

statute that termination of defendant's parental rights would

not do Calvin more harm than good.             N.J.S.A. 30:4C-15.1(a)(4).

In this regard, she expressly concluded that that there was "no

realistic likelihood that [defendant would] be able to safely

and appropriately care for [Calvin] now or in the foreseeable

future."

      Again referring to the allegations of sexual abuse, the

judge    emphasized     on   prong     four    that    defendant    had      "not

demonstrated     a   commitment   to    addressing     his    deviant     sexual

behavior and poor parenting skills which pose a risk of harm to

[Calvin]."       She    emphasized     that   defendant      had   "failed     to

complete any services that address[ed] his [s]ubstantiation for

child sexual abuse [and] ha[d] not attended parenting skills

[classes] which would have assisted [him] in learning how to

parent [Calvin], a child with medical and behavioral issues."

The judge reiterated that defendant had failed to visit Calvin.

She noted that both testifying experts, Dr. Katz and Dr. Smith,

had     opined   that    defendant's        parental    rights     should      be

terminated.      Lastly, the judge emphasized Calvin's strong need

for permanency.

      Defendant thereafter filed the present appeal, which both

the Division and the Law Guardian oppose.




                                       22                               A-2565-15T2
                                        II.

      Although defendant argues the trial court's findings on all

four criteria for termination are flawed for numerous reasons,

his   main    legal    point    concerns       the    court's     admission       over

objection, and its reliance upon, the hearsay allegations of

sexual    abuse   conveyed      by    T.C.'s    minor   daughters,        Jenny   and

Sandy.

      Defendant submits that, as a matter of law, the hearsay

exception adopted by the Legislature and codified at N.J.S.A.

9:6-8.46(a)(4)        applies        only      in     child      abuse-or-neglect

proceedings    litigated       under   Title    9.      He     contends    that   the

hearsay    exception    does    not    apply    to    termination    of    parental

rights cases litigated, as here, under Title 30, a context in

which the stakes for a parent are markedly higher and in which

the Division's burden of proof is more stringent.

      Defendant asserts the trial court erred in overruling his

repeated     objections   to     the   minors'       hearsay    statements.         He

maintains that the court further erred in relying on the truth

of those allegations in its analysis of the statutory predicates

for termination.       He argues that these errors were not harmless,

and that he is entitled to a new guardianship trial.

      Defendant is joined in his arguments for reversal by amicus

curiae, The John J. Gibbons Fellowship in Public Interest and




                                         23                                 A-2565-15T2
Constitutional Law.        As a contingent argument, amicus contends

that the trial court's admission and reliance upon the minors'

hearsay     statements   deprived    defendant         of    his    constitutional

rights of due process of law.

    In response, the Division and the Law Guardian contend that

the Legislature did not intend to confine the hearsay exception

in N.J.S.A. 9:8-46(a)(4) to Title 9 proceedings, and that the

provision equally applies to Title 30 guardianship trials.                          They

assert that Title 9 and Title 30 are to be construed "in para

materia."      Consequently,      they    urge     that     the    special      hearsay

exception designed to ease the Division's evidentiary burden in

Title   9   cases    should   logically        apply   likewise       in       Title   30

guardianship proceedings.          Respondents also point out that our

trial and appellate courts have applied the                       Title 9 hearsay

exception     to    termination    cases      in   several        prior    unreported

opinions.

    Further, as a policy matter, the Division contends in its

own brief that it will impose undue burdens on the Division and

upon abused children to disallow their hearsay statements and

require     them    to   testify    in        court    at    Title        30    trials.

Alternatively, the Division argues that the girls' statements in

this case about the alleged sexual abuse were admissible under

N.J.R.E. 703 through the expert testimony of Dr. Katz.                                 The




                                         24                                     A-2565-15T2
Division further argues that, even if the hearsay statements of

T.C.'s     daughters   are   disregarded,   there   is    ample   independent

evidence in the record to support the trial court's findings as

to   the   four   termination   factors.     The    Law   Guardian   at   oral

argument echoed these contentions.

                                     A.

      For proper context, we present the full current text of

N.J.S.A. 9:6-8.46(a).        The portion of the statute at the crux of

this appeal appears in subsection (a)(4):

             a. In any hearing under this act, including
             an administrative hearing held in accordance
             with the "Administrative Procedure Act,"
             P.L. 1968, c. 410 (C. 52:14B-1 et seq.), (1)
             proof of the abuse or neglect of one child
             shall be admissible evidence on the issue of
             the abuse or neglect of any other child of,
             or the responsibility of, the parent or
             guardian and (2) proof of injuries sustained
             by a child or of the condition of a child of
             such a nature as would ordinarily not be
             sustained or exist except by reason of the
             acts or omissions of the parent or guardian
             shall be prima facie evidence that a child
             of, or who is the responsibility of such
             person is an abused or neglected child, and
             (3) 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



                                     25                              A-2565-15T2
         or private institution or agency, and that
         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    and      (4)      previous
                                         [10]
         statements made by the child          relating to
         any allegations of abuse or neglect shall be
         jadmissible in evidence; provided, however,
         that no such statement, if uncorroborated,
         shall be sufficient to make a fact finding
         of abuse or neglect.

10
   The statute does not define who can qualify as "the child"
whose statements are eligible for this hearsay exception.     In
particular, it is unclear whether "the child" under subsection
(a)(4) can be a non-party hearsay declarant who is not a child
of the defendant parent or guardian whose rights are at issue.
The parties have not briefed this specific question.     At oral
argument on the appeal, the Deputy Attorney General suggested
that the term "the child" in subsection (a)(4) pertains to any
child, pointing to subsection (a)(1)'s reference to proof of the
abuse or neglect of one child being admissible as proof of the
abuse or neglect of another child. See N.J.S.A. 9:6-8.46(a)(1).
However, subsection (a)(1) does not say that hearsay or
inadmissible proof of abuse as to one child is admissible to
support this other-child inference. In any event, because this
discrete sub-issue has not been briefed, we shall assume, but
not decide, that the term "child" does extend to non-party
children such as Jenny and Sandy in this case.    See Sklodowsky
v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) (expressing
our general reluctance to address issues that were not briefed
on appeal).



                                26                            A-2565-15T2
                [N.J.S.A. 9:6-8.46(a) (emphasis added).]

      In    construing         the   meaning       of     these      provisions,     we    are

guided     by    longstanding        principles         of     statutory      construction.

When interpreting a statute, a court's primary goal is to give

effect to the intent of the Legislature.                            In re N.B., 222 N.J.

87, 98 (2015).           "[T]he best indicator of that intent is the

plain language chosen by the Legislature."                            Ibid.      (alteration

in   original)       (quoting        State    v.    Gandhi,          201   N.J.    161,    176

(2010)).        "[W]ords and phrases shall be read and construed with

their context, and shall, unless inconsistent with the manifest

intent of the Legislature or unless another or different meaning

is   expressly       indicated,        be     given       their      generally      accepted

meaning,        according      to    the    approved         usage    of   the    language."

N.J.S.A. 1:1-1; accord N.B., supra, 222 N.J. at 98.

      "If the statute is clear and unambiguous on its face and

admits     of    only    one    interpretation,           [a    court]     need    delve    no

deeper than the act's literal terms to divine the Legislature's

intent."         State   v.     Butler,      89    N.J.      220,    226   (1982);    accord

Gandhi, supra, 201 N.J. at 180-81.                      "A court may neither rewrite

a plainly-written enactment of the Legislature nor presume that

the Legislature intended something other than that expressed by

way of the plain language."                  O'Connell v. State, 171 N.J. 484,

488 (2002).



                                              27                                     A-2565-15T2
       That    said,     where    there     is   more       than     one       plausible

interpretation, or where a literal reading of the statute would

yield an absurd result, a court may turn to extrinsic evidence

to assist in its interpretation of legislative intent.                              N.B.,

supra, 222 N.J. at 98-99; see also Wilson ex rel. Manzano v.

City of Jersey City, 209 N.J. 558, 572 (2012).                       Such extrinsic

evidence      may   include,     for     example,    a     statute's       legislative

history,      committee       reports,    and    the       law's     contemporaneous

construction.          N.B.,     supra,    222      N.J.    at     98;     see,     e.g.,

DiProspero v. Penn, 183 N.J. 477, 492-93 (2005) (examining such

extrinsic     aids,     including      pertinent     legislative          history,      in

construing the meaning of a contested aspect of the Automobile

Insurance Cost Saving Reform Act).

       Applying those principles of construction here, we conclude

that the plain meaning of the terms of N.J.S.A. 9:6-8.46(a)(4)

is   to   confine      that   discrete     hearsay       exception        to   abuse-or-

neglect cases litigated in Title 9 proceedings.                           The Title 9

provision simply does not apply in Title 30 termination cases,

even      though      that     inapplicability           may       pose        evidential

difficulties for the Division in such matters.

                                          B.

       A key factor that informs our plain-meaning analysis is

that the hearsay exception in question appears only in Title 9




                                          28                                     A-2565-15T2
of our State's statutes.            It is not repeated or incorporated by

reference anywhere within Title 30.                      Significantly, the first

line of subsection (a) of N.J.S.A. 9:6-8.46 begins with this

contextual    and    limiting       phrase:       "In    any    hearing        under       this

act . . . ."       (Emphasis      added).        By     using   the     prefatory          term

"this     act,"     the     Legislature          plainly        conveyed           that     the

evidentiary       provisions       set     forth      within      subsection          (a)(1)

through    (4)     are    all   special     rules       intended      to      override       or

qualify    the     general      rules      of     evidence,       but      for      Title     9

proceedings only.

    Although        we     need     not     necessarily         consider           extrinsic

sources,     the    relevant       legislative          history       reinforces           this

conclusion about the plain meaning of the statute.                               Throughout

the history of our State's codified child welfare laws, the

Legislature        has     repeatedly           addressed       abuse         or     neglect

proceedings and proceedings to terminate a parent's rights in

separate portions of the New Jersey statutes.

    Before        1951,   the     child    welfare       laws    in     our    State      were

fundamentally       criminal       in     nature.         The     Legislature             first

codified child welfare penalties in L. 1915, c. 246.                                The Act,

spanning ten sections, criminalized such conduct as child abuse,

abandonment,       neglect,       and    cruelty.         Ibid.         Although          civil

aspects were present (such as provisions for a child's placement




                                           29                                        A-2565-15T2
following a defendant's conviction), the Act contained mostly

criminal components, including the possibility of jail time of

up to one year.         Ibid.

      In 1939, the Legislature amended Title 9 to enable other

entities       apart        from     prosecutors,             such    as    school     boards,

municipalities,         and        private   child         welfare      organizations,       to

"prefer    a   complaint"           for   suspected         child     abandonment,     abuse,

neglect, or cruelty.                L. 1939, c. 277.                 That enactment stated

that such bodies, by filing such complaints, may "cause to be

arrested and prosecuted any person who shall offend against" the

chapter's provisions.               Ibid.

      A   State    agency           to    administer          child    welfare     cases    was

statutorily created in Title 30 by L. 1951, c. 138, codified at

N.J.S.A. 30:4C-1, -2.                The agency's name has changed over the

years and is currently known as the Division of Child Protection

and Permanency.         "[F]or all purposes [the Division is] deemed a

continuation"          of     previous       State          child      welfare       agencies.

N.J.S.A. 30:4C-2.1.

      As adopted in 1951, Chapter 138 largely established the

modern    framework         and     contents          of   Title      30.    The     enactment

consisted of forty sections.                     L. 1951, c. 138.             Specifically,

the   statute      concerned              "the        care,     custody,      guardianship,

maintenance       and        supervision          of       dependent        and      neglected




                                                 30                                   A-2565-15T2
children[.]"       Ibid.       Although       the   statute      was    mostly        about

guardianship matters, the Act also directed the new State agency

to administer Title 9.           Id. at § 4.        Among other things, Chapter

138 empowered the agency to file a complaint for guardianship

after a Title 9 abuse or neglect determination.                    Id. at § 15.

    In 1971, and again in 1974, the Legislature enacted two

major overhauls that largely govern today's abuse or neglect

("FN") docket in Title 9 proceedings.                  First, L. 1971, c. 437,

was passed "for the protection of children under 18 years of age

who have had serious injury inflicted upon them by other than

accidental     means."         That    1971      statute     inserted         eight     new

sections   into    Title    9,    so   as   "to     assure      that    the    lives    of

innocent      children   are      immediately       safeguarded         from     further

injury and possible death and that the legal rights of such

children are fully protected."                Id. at § 1.         The 1971 statute

redefined what constitutes child abuse, id. at § 2, and how to

report such child abuse, id. at § 3.                       The law directed the

agency (then known as the Bureau of Children's Services) to

administer the act.        Id. at §§ 4, 5 & 8.

    The hearsay exception at issue in this case was enacted in

1974 and codified at N.J.S.A. 9:6-8.46(a)(4).                      The Legislature

approved   this    measure     through      L.    1974,    c.    119,    §    26,     which

passed   on    October   10,     1974.        Notably,     the    preface       to    that




                                         31                                     A-2565-15T2
chapter reads: "An act concerning the manner of disposition of

cases of child abuse or neglect, revising parts of the statutory

law    and    providing         for   an    appropriation."           L.    1974,   c.    119.

Chapter 119 contains fifty-six sections, all of which created or

modified portions of Title 9.

       Chapter 119 addressed many procedural aspects associated

with    abuse       or    neglect      litigation,           including     the   issuing    of

summonses in abuse-or-neglect cases, id. at § 17 (N.J.S.A. 9:6-

8.37); sustaining or dismissing an abuse or neglect case, id. at

§ 30 (N.J.S.A. 9:6-8.50); and identifying who may originate an

abuse-or-neglect proceeding, id. at § 14 (N.J.S.A. 9:6-8.34).

Chapter       119        made    no     reference            whatsoever     to    Title     30

guardianship proceedings.

       Over the years, when overhauling or modifying provisions

within       Title    9    or   Title      30,     the   Legislature       has    frequently

(albeit      not     exclusively)          dealt      with    those   Titles     separately.

For example, in 1962, lawmakers reorganized many State agencies

to fit under the administrative umbrella of the Division of

Welfare, and outlined what functions the Bureau of Children's

Services would administer.                   L. 1962, c. 197.             Title 9 was only

mentioned       in       that   1962       law   incidentally,        indicating      how    a

finding of abuse or neglect would impact the State's ability to




                                                 32                                 A-2565-15T2
file a complaint for termination of a parent's rights under

Title 30.      Id. at § 15.

       Similarly,      when      the     Legislature           redefined        child     abuse

standards      in    Title       9,    L.       1987,    c.       341,   and     passed     the

Comprehensive Child Abuse Prevention and Treatment Act, L. 1997,

c. 175, it did so with scant or minimal reference to Title 30.

When the four-prong "best interests" standard for termination

was codified in L. 1991, c. 275, the provision was codified only

in Title 30, with no cross-reference to Title 9.

       We are mindful that, more recently since 1999, changes in

our    child     welfare     laws      have      tended      to    involve      simultaneous

revisions of portions of both Title 9 and Title 30.                               See, e.g.,

L. 1999, c. 53; L. 2004, c. 130; L. 2012, c. 16.                                    Notably,

however, when the Legislature amended N.J.S.A. 9:6-8.46(a) in

2005   by   L.      2005,   c.    269,      §    2,     to    expand     that    evidentiary

provision's applicability to administrative hearings in which a

parent or other caretaker can be charged with abuse or neglect,

the    Legislature      did      nothing        to    expand       the   scope     of     those

exceptions to Title 30 termination proceedings.                                 Instead, the

Legislature confined the 2005 expansion solely to administrative

hearings.




                                                33                                  A-2565-15T2
                                            C.

       As    we      have     already     highlighted,          N.J.S.A.           9:6-8.46(a)

specifies that it applies only to "any hearing under this act."

(Emphasis added).              The hearings provided under the 1974 law

include a hearing upon emergency removal of a child, L. 1974, c.

119,    §    11    (codified     at     N.J.S.A.       9:6-8.31);        a    hearing        upon

application to return a child that has been temporarily removed,

L. 1974, c. 119, § 12 (codified at N.J.S.A. 9:6-8.32); a fact-

finding      hearing    to     determine     whether      a     child        was    abused      or

neglected, L. 1974, c. 119, §§ 24, 26 (codified at N.J.S.A. 9:6-

8.44, -8.46); and a dispositional hearing after which a court

may release the child to the custody of his parents, relative,

or other Division-approved caretaker, issue protective orders,

and    order      therapeutic     services,       L.    1974,      c.    119,      §§    25,   31

(codified at N.J.S.A. 9:6-8.45, -8.51).

       The     stated       legislative    objectives         of    L.       1974,      c.   119,

reflect that the law was intended to address abuse or neglect by

providing for the emergency or temporary removal of children.

Senate Law, Public Safety & Defense Comm. Statement to S. 1217

(May 2, 1974).              The Committee Statement described the fact-

finding      and     dispositional        hearings      provided         under       the     law.

Notably,       the    Committee       Statement    does       not   mention          permanent

removal of children or the termination of parental rights.




                                            34                                          A-2565-15T2
       We further agree with defendant and amicus that it would be

illogical to read N.J.S.A. 9:6-8.46(a) as being applicable to

Title 30 guardianship proceedings, in light of the clause within

the      subsection         specifically         disallowing             uncorroborated

statements     of    abuse    from     being    "sufficient         to    make     a    fact

finding of abuse or neglect."              N.J.S.A. 9:6-8.46(a)(1) (emphasis

added).     If, as respondents maintain, the hearsay exception in

the    subsection        generally    extended       to    termination        proceedings

under     Title     30,     the    language     in        subsection      (a)(1)       would

seemingly      allow       uncorroborated       statements          to    be     used     to

establish that termination is in the best interests of a child

pursuant to N.J.S.A. 30:4C-15.1(a), while prohibiting the use of

such uncorroborated statements to establish abuse or neglect in

a Title 9 proceeding.             Such an illogical construction should not

be    countenanced.         See    State   v.   Morrison,       227      N.J.    295,    308

(2016) (instructing that a statute must be construed sensibly,

and rejecting an interpretation "that leads to an absurd result

[that] is distinctly at odds with the public-policy objectives

of a statutory scheme").

                                           D.

       Apart      from    their      unpersuasive         textual      and      structural

arguments,     respondents         point   to   passages       within     a     few    prior

cases that they contend support, at least by inference, its




                                           35                                     A-2565-15T2
expansive interpretation of the hearsay exception in N.J.S.A.

9:6-8.46(a)(4).         For instance, respondents rely on Guardianship

of D.M.H., 309 N.J. Super. 179, 202 (App. Div. 1998), in support

of their claim that "it has been specifically held that Titles 9

and 30 should be read in pari materia."                    However, our decision

in   D.M.H.     was     reversed      by   the   Supreme    Court.         See     In    re

Guardianship of D.M.H., 161 N.J. 365, 394 (1999).                         Respondents

rely on one sentence that was dicta in our decision in D.M.H.,

which   cited     in    turn    the    Supreme    Court's    decision       in     In    re

Adoption of a Child by D.M.H., 135 N.J. 473, 481, cert. denied

sub nom, Hollingshead v. Hoxworth, 513 U.S. 967, 115 S. Ct. 433,

130 L. Ed. 2d 345 (1994).

      In    Adoption     by     D.M.H.,    the   Supreme    Court    discussed          the

standards       for    terminating     parental    rights    under        the    private

adoption statutes, N.J.S.A. 9:3-48(c)(1) and N.J.S.A. 9:3-46(a).

Ibid.      Citing In re Adoption of Children by L.A.S., 134 N.J.

127, 134-35 (1993), the Court commented that the concept of

"'[a]bandonment' in both private and public adoptions requires a

state      of   mind     that     indicates      the   willful       or    purposeful

repudiation of parental responsibilities."                   Adoption by D.M.H.,

supra, 135 N.J. at 481.

      In its earlier opinion in L.A.S., supra, the Court, again

in dicta, compared the standards for terminating parental rights




                                           36                                    A-2565-15T2
in Title 30 with the standards in the Title 9 private adoption

statutes   and    observed   that    "despite   the   differences   in    the

respective statutory descriptions of the conditions required to

terminate parental rights, the substantive standards governing

both   public    and   private   termination    proceedings   are   roughly

equivalent to one another."         134 N.J. at 134 (emphasis added).

       Notwithstanding this substantive overlap, the Supreme Court

did not hold in Adoption by D.M.H., nor in L.A.S., that Title 9

and Title 30 must be read, for all purposes, in pari materia.

Indeed, no reported case has made such a sweeping, all-inclusive

determination.

       The Division further relies on New Jersey Division of Youth

and Family Services v. F.H., 389 N.J. Super. 576, 609 (App.

Div.), certif. denied, 192 N.J. 68 (2007), in support of its

argument that N.J.S.A. 9:6-8.46 has been repeatedly applied in

Title 30 guardianship trials.           In F.H., this court considered

whether the Division had proven by clear and convincing evidence

in a Title 30 case that the parental rights of F.H. and A.H. as

to their three children should be terminated.            Id. at 584.       We

held that the record supported a conclusion that the parents had

harmed the middle child but not the other two children.              Id. at

612-13.    As a passing observation, we "recognize[d], however,

that under N.J.S.A. 9:6-8.46[(a)(1)], 'proof of the abuse or




                                      37                            A-2565-15T2
neglect of one child shall be admissible evidence on the issue

of    the    abuse          or   neglect    of    any    other       child         of   .     .     .   the

parent[.]'"            Id. at 613.

       We    did       not       analyze    in    F.H.     whether        Title         9's       special

evidence provisions had been appropriately applied in a Title 30

guardianship case.                  Indeed, after citing the Title 9 evidence

statute, we went on to say that "as a part of its burden of

proof, the State must still demonstrate by a preponderance of

the   competent,             material      and    relevant      evidence           (N.J.S.A.            9:6-

8.46(b)) the probability of present or future harm."                                        Id. at 614

(quoting N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J.

Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426

(2005)).

       Viewed          in    proper       context,       our    focus         in    F.H.          was     to

emphasize that the burden of proof must be satisfied, regardless

of the admission of evidence concerning abuse of a sibling.

Based       on    the       facts    in    that    record,          we   concluded            that       the

Division         had    not      proven    the     first       prong     of    N.J.S.A.            30:4C-

15.1(a) as to the middle child's two siblings.                                     Id. at 616-17.

We do not regard the passages in F.H. cited by the Division as

authoritatively or conclusively establishing that N.J.S.A. 9:6-

8.46(a)(4)         is       generally      applicable          to    Title         30   termination




                                                  38                                              A-2565-15T2
cases.     Importantly, that specific legal question was not before

the F.H. panel, as it now is here.

     Further, although F.H. quoted from the Title 9 statute,

there is case law independently suggesting that competent proof

of   the    abuse   or     neglect   of     a    sibling      is   admissible      in

considering harm to a child in a Title 30 proceeding.                      See J. v.

M., 157 N.J. Super. 478, 493 (App. Div. 1978) (finding "[a]ll

any court can rely upon in determining whether to sever parental

rights is the parents' past course of conduct, whether to the

child in question or to other children in their care"), certif.

denied, 77 N.J. 490 (1978).          Reliance on N.J.S.A. 9:6-8.46(a)(1)

therefore    was    not    necessary      in    F.H.    for    recognizing      that

appropriate evidence of abuse or neglect of a sibling may be

admissible in a guardianship trial.

     The Division also cites to New Jersey Division of Youth and

Family Services v. A.R.G., 179 N.J. 264, 275-78 (2004), and New

Jersey Division of Youth and Family Services v. N.S., 412 N.J.

Super. 593, 624, 626-27 (App. Div. 2010), as indicative that our

courts at times have given collateral estoppel effect to Title 9

findings in Title 30 cases where the findings were based on

hearsay statements of abused children.                 In A.R.G., the Supreme

Court specifically considered whether aggravated circumstances

existed,    such    that   the   Division       was    excused     under    N.J.S.A.




                                       39                                   A-2565-15T2
30:4C-11.3(a)        from   providing      reasonable       efforts     towards

reunification.       179 N.J. at 270.        The trial court had found by

clear and convincing evidence that the child "had been subjected

to   aggravated      circumstances    of   abuse    and    cruelty"   based    on

photographs     of    the   child's   injuries,      medical     records,     the

caseworker's testimony, and the Division's report.               Id. at 275.

      On appeal to the Supreme Court in A.R.G., the defendant

argued that he had been denied due process and that the evidence

was insufficient to support the trial court's findings, in part,

because the testimony of the caseworker relied on hearsay.                    Id.

at   280.     The    Division    countered   that    the    testimony   of    the

caseworker was admissible because it was based on her first-hand

knowledge of the child's injuries, and because it accorded with

N.J.S.A. 9:6-8.46(a)(4) and Rule 5:12-4(d).11               Id. at 281.       The

Court   did    not     address    these    arguments       in   its   decision.


11
   Rule 5:12-4(d) provides that the Division may submit into
evidence, pursuant to the general business record hearsay
exception, N.J.R.E. 803(c)(6), and N.J.R.E. 801(d) (defining a
"business" for purposes of the hearsay rules), "reports by
[Division] staff personnel or professional consultants."    That
Court Rule, which is not at issue in this appeal, does not
govern the analysis of the statutory provisions within Title 9
and Title 30, nor does it provide any insight into the
Legislature's intent.   In any event, hearsay statements from a
child embedded in such reports would need an independent pathway
for admission to be considered for their truth.     See N.J.R.E.
805 (limiting the admissibility of hearsay within hearsay); see
also N.J. Div. of Child Protection & Permanency v. N.T., 445
N.J. Super. 478, 497 (App. Div. 2016).



                                      40                                A-2565-15T2
Instead, it focused on developing a standard that could be used

to find "aggravated circumstances" under N.J.S.A. 30:4C-11.3.

Id. at 282-85.          After setting forth the standard to be used, it

remanded the matter to the trial court for a de novo review of

the issue of "aggravated circumstances."                   Id. at 285.

      The Division suggests that the opinion in A.R.G. signifies

that decisions made by a Title 9 court, on a finding of clear

and   convincing          evidence    that     includes     hearsay,    can    satisfy

elements       of   the    best    interests       test   prescribed    in    N.J.S.A.

30:4C-15.1(a).        However, the Supreme Court in A.R.G. did not so

hold and did not even consider the question.

      Yet another case relied on by the Division, N.S., supra,

412 N.J. Super. at 606, is likewise not dispositive.                          In N.S.,

the     defendants        challenged      a   finding      of   abuse   and    neglect

rendered in a Title 9 proceeding.                   Despite the Division's claim

that the trial court had admitted the hearsay statements of a

child    and    found      abuse     by   clear    and    convincing    evidence,     we

recognized that the Division's assigned burden of proof in a

Title 9 case was only by a preponderance of the evidence.                           Id.

at 615.        The question of the admissibility of hearsay was not

before this court.            Rather, the defendants had objected to the

statements of the child on the basis that "they were the product




                                              41                              A-2565-15T2
of highly suggestive and improper questioning techniques."                 Id.

at 621 (internal quotations omitted).

     The Division also has cited to us a handful of unreported

opinions, in which various panels of this court have presumed or

stated in passing that the special evidentiary provisions in

N.J.S.A. 9:6-8.46(a)(4) apply in Title 30 termination trials.

We   place     no   reliance    on    those   unpublished       opinions     as

authoritative.      See R. 1:36-3.     According to the Division, these

unreported opinions are at least suggestive of a custom to treat

Title 9 and Title 30 evidentiary principles interchangeably.

     Nevertheless, regardless of such claims of custom, we are

obligated to apply and enforce our statutes in accordance with

their plain terms.      Those plain terms, as we have shown, mandate

that N.J.S.A. 9:6-8.46(a)(4) be confined to Title 9 proceedings

rather than Title 30 guardianship trials.

                                      E.

     The     Supreme   Court   has   long   noted   important    differences

between Title 9 and 30 proceedings.            As the Court observed in

New Jersey Division of Youth and Family Services v. R.D.:

             Title Nine proceedings differ from Title
             Thirty proceedings in three fundamental
             respects:   Title   Nine    proceedings   are
             intended  to   be   started   and   completed
             quickly, while Title Thirty proceedings
             stress a more deliberative and comprehensive
             approach; Title Nine proceedings are geared
             towards an interim form of relief – removal



                                      42                             A-2565-15T2
                of the child from immediate harm, with
                permanent placement to be considered at   a
                later date – while the relief sought in
                Title Thirty proceedings is the permanent
                termination of parental rights that will
                allow the child to become eligible for
                adoption by another; and, most importantly,
                the differing standards of proof applicable
                to those disparate proceedings highlight a
                fundamental difference between the two.

                [207 N.J. 88, 118 (2011).]

     Although it did not directly address the discrete issue now

before    us,     the    Supreme      Court's     opinion      in   R.D.    provides     a

specific indication that the special evidentiary provisions that

apply in Title 9 proceedings are not impliedly applicable in

Title 30 proceedings.            Id. at 114.       As the Court observed, there

are differences between those proceedings "in respect of the

standards for admissibility of evidence."                      Ibid.   The Court went

on   to    cite        the   subsections         within    N.J.S.A.        9:6-8.46    as

exemplifying those differences.                   Although the Court used the

adjective "minor" to describe those differences, the instructive

point     for    our    present       purposes    is    that    the    Court   in     R.D.

acknowledged           the     existence     of        differences      between       the

evidentiary provisions that apply in Title 9 proceedings and

those that govern Title 30 termination proceedings.                        Ibid.

     Moreover,         there    are    markedly    different        burdens    of   proof

respectively imposed by the Legislature for Title 30 termination

proceedings, as opposed to abuse or neglect proceedings under



                                           43                                   A-2565-15T2
Title 9.        The Division's burden of proof in Title 9 abuse or

neglect cases, whether litigated in the Family Part under the FN

docket     or     in     administrative           proceedings,          is     the     mere

preponderance of the evidence.                   Id. at 96.        By contrast, the

Division bears a much heavier burden of proof in guardianship

trials when seeking the termination of a parent's rights, having

the duty to establish all four statutory criteria by clear and

convincing evidence.            N.J. Div. of Youth & Family Servs. v.

E.P., 196 N.J. 88, 103 (2008).

      Because the termination of a parent's right to raise his or

her     child    is     permanent     under      the     Title     30    statute,          the

Legislature      had    a   logical    basis      to     impose   a     more    stringent

burden     on    the     Division     in     such      termination           cases.        By

comparison, a parent or guardian who is found in a Title 9

proceeding to have engaged in an act of abuse or neglect will

not necessarily have their rights terminated, but will be placed

on the Child Abuse Registry.                N.J. Div. of Child Protection &

Permanency      v.     V.E.,   448   N.J.     Super.      374,    391-92       (App.   Div.

2017).     Although that registry consequence is also a serious

one, it does not equate to a parent's loss of a child forever.

Accordingly,      it    was    entirely     logical       for    the    Legislature        to

confine the special evidentiary rules in N.J.S.A. 9:6-8.46(a),

which    ease    the    Division's    burden,       to    Title    9    cases,       and    to




                                            44                                    A-2565-15T2
require   the    Division    to     adduce     more    rigorous        and   persuasive

proof in a Title 30 termination trial.

      Of course, the Legislature has the prerogative to amend

Title 30 and incorporate some or all of the special evidentiary

exceptions from Title 9 into that statute, if it so chooses.

The   Legislature     is    best    positioned        to   weigh       the   legitimate

policy    interests    in   shielding        children      from       stressful    court

appearances      against     the     likewise         legitimate        interests      of

defendants      in   assuring      that   their       parental        rights    are   not

terminated in an unfair manner based upon unreliable hearsay.

We leave that policy choice to our elected officials.                          It is not

our task or role to provide an advisory opinion about the merits

of such hypothetical legislation.              G.H. v. Twp. of Galloway, 199

N.J. 135, 136 (2009).

      Nor do we need to reach here the constitutional issues of

due process posed by amicus.              See Randolph Twp. Ctr., L.P. v.

Cnty. of Morris, 186 N.J. 78, 80 (2006) (stating the well-known

principle     that    courts       "should     not     reach      a    constitutional

question unless its resolution is imperative to the disposition

of litigation").

                                          F.

      As an alternative legal basis for the admission of the

minor females' hearsay allegations of sexual abuse, the Division




                                          45                                    A-2565-15T2
argues     that,    under    N.J.R.E.   703,    the      trial   court    properly

considered the substance of those allegations, insofar they were

"facts or data" noted by Dr. Katz in his own expert testimony.

We disagree.

      N.J.R.E. 703 does allow a testifying expert to base his or

her opinions on "facts or data" that are either "perceived by or

made known to the expert at or before the hearing" or trial.

Ibid.      Rule 703 adds that if the facts or data are "of a type

reasonably relied upon by experts in [the expert's] particular

field in forming opinions or inferences upon the subject," such

information "need not be admissible in evidence."                    Ibid.; see,

e.g., In re Civil Commitment of J.M.H., 367 N.J. Super. 599, 612

(App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

      An important limitation of this Rule 703 exception is that,

if   the   "facts    or     data"   relied   upon   by    the    expert   are   not

admissible, then the court or trier of fact may only consider

those facts or data to the extent it is helpful in understanding

the expert's opinions or assessing their credibility.                     The non-

admitted facts or data, which are often hearsay, may not be

considered for their truth as substantive proof.                      See, e.g.,

Agha v. Feiner, 198 N.J. 50, 63 (2009); McLean v. Liberty Health

Sys., 430 N.J. Super. 156, 173-74 (App. Div. 2013).




                                        46                                A-2565-15T2
      The expert's testimony may not be used as a "conduit" to

establish      facts       that     are       not      independently           supported       by

competent evidence.             Agha, supra, 198 N.J. at 63; James v. Ruiz,

440 N.J. Super. 45, 66 (App. Div. 2015).                          If an expert opinion

is   based    on    a    fact     not    in    evidence,        "its    persuasiveness         is

greatly undermined."              Goyden v. State Judiciary, 256 N.J. Super.

438, 455 (App. Div. 1991), aff'd o.b., 128 N.J. 54 (1992).

      Indeed, we have admonished the Division and trial judges in

several reported cases to refrain from basing determinations in

child     welfare         cases     upon       inadmissible            hearsay    or        other

incompetent proof.              See, e.g., N.J. Div. of Child Protection &

Permanency v. S.G., 448 N.J. Super. 135, 146-47 (App. Div. 2016)

(vacating     the       finding     of    abuse-or-neglect             because    the       trial

court   relied      entirely        on    Division       reports        to    establish      the

defendant's marijuana use and should have instead heard some

witness      testimony);          N.T.,       supra,    445      N.J.        Super.    at     501

(disallowing        the    hearsay        opinion      of   a    psychologist         about     a

complex diagnosis of a child's PTSD, where the diagnosis was not

shown to be trustworthy);                N.J. Div. of Youth & Family Servs. v.

B.M., 413 N.J. Super. 118, 128 (App. Div. 2010) (disallowing

reliance on information from a hearsay source about a child's

fetal alcohol syndrome in a Title 30 termination proceeding).




                                               47                                      A-2565-15T2
      Here, Dr. Katz had no personal knowledge of the truth of

the girls' sexual abuse allegations.             As we have noted, Jenny

and Sandy did not testify at the guardianship trial.             Nor did

Dr.   Katz   cite   to   any    objective   or    clinical   evidence   to

corroborate the abuse.         In fact, at least at one point, Jenny

recanted her allegations.        Moreover, as Dr. Katz himself noted,

there were inconsistencies within the hearsay allegations.

      For these many reasons, we conclude it was error for the

trial court to admit and rely on those inadmissible hearsay

allegations of sexual abuse in this case.12             We do, however,

offer one important caveat to that conclusion, as it relates to

Sandy's specific allegations relative to defendant's involvement

in her abortion.

      As we noted in our factual recitation in Part I, supra, the

Division moved into evidence a certified copy of Sandy's medical

records from her abortion procedure.         Despite defense counsel's

strenuous objection to other hearsay items of proof, defendant

did not oppose the admission of the medical records.                Those


12
  We note there is no contention by the Division that the girls'
allegations were admissible under the "tender years" hearsay
exception, N.J.R.E. 803(c)(27), which requires, among other
things, a judicial finding of trustworthiness after certain
special procedures and a Rule 104 hearing are followed.    State
v. P.S., 202 N.J. 237, 249 (2010). Moreover, Sandy was over the
age of twelve and thus not of "tender years" within the terms of
that provision.



                                    48                           A-2565-15T2
records do not establish that defendant had sexual relations

with Sandy, who apparently told the medical staff that she had

been impregnated by her boyfriend.

      In    any        event,   the     medical         records    are    probative      and

competent evidence of certain facts, i.e., that defendant took

Sandy      to    the     office,      that    he    purported       to    authorize      the

procedure as her parent or guardian, and that the procedure was

an abortion.            Such evidence is particularly relevant to rebut

defendant's claims to the contrary.                       It was also underscored in

Dr. Katz's trial testimony as inappropriate behavior indicative

of   defendant's         unsuitability       as     a    parent.     To    that    limited

extent,         the     trial    court       was    entitled        to    consider       the

unchallenged          medical   records      concerning       the   abortion      and    the

expert's        associated      testimony.          Any    claim    of   error    in    this

regard by defendant is rejected as invited or waived.                             See N.J.

Div. of Youth & Family Servs. v. M.C., III, 201 N.J. 328, 339-42

(2010).         There is no fundamental injustice in upholding                           the

limited use of those particular records.

                                             III.

      Having concluded that the trial court erred in admitting

the portions of the trial exhibits and testimony relating to

Jenny's and Sandy's hearsay allegations of defendant's sexual

wrongdoing, we must now consider the impact of that mistake.




                                              49                                  A-2565-15T2
Specifically,    we     must    evaluate       whether         the   error      was,   as

respondents argue, merely harmless, see State v. Macon, 57 N.J.

325, 340 (1971), or whether it was sufficiently prejudicial to

have been "clearly capable of producing an unjust result."                              R.

2:10-2.

      Defendant's     long-standing       failure         to    comply     with    court

orders and services provided by the Division and to maintain a

relationship with Calvin despite supervised visitation offered

to him reflect serious deficiencies on his part.                           Even so, we

have concerns about the extent that the hearsay allegations of

sexual abuse affected the trial court's overall analysis of this

case with respect to prongs one, two, and four.                       As     the   trial

judge explicitly stated in her written decision, the court could

"not ignore" the minors' allegations.                     The judge accepted at

face value their reported hearsay contentions that defendant had

engaged in a "consistent pattern of egregious acts of abuse or

neglect."

      If what the minors had alleged about defendant's utterly

deplorable sexual conduct is indeed true, the judge's comments

are   surely   justified.        Such    outrageous            conduct,    if    proven,

warrants severe sanctions and the utmost protection against its

reoccurrence.    Yet, despite the severity of the allegations of

sexual    wrongdoing,     the    State        did   not    criminally        prosecute




                                         50                                     A-2565-15T2
defendant,     perhaps           because          of     the    recantation         and       the

inconsistencies         within        the    girls'      narratives.         Moreover,        the

Division     chose      not      to    attempt         to     prove   the    sexual        abuse

allegations at a Title 9 fact-finding hearing, despite having

initially filed a complaint against defendant under Title 9.

    The fundamental problem for our present appellate review is

that the girls' allegations of abuse were not supported by any

competent proof in this record under the evidentiary rules that

govern Title 30 proceedings.                  Indeed, much of Dr. Katz's opinion

was predicated on an assumption that "if" the girls' allegations

were true, then certain inferences and protective measures were

warranted.        Consequently,             the    unproven     allegations        of    sexual

abuse must be disregarded.

    Our concerns about such spillover effects do not extend to

the trial judge's findings with respect to prong three of the

statute.          The       record          abundantly         supports      the        judge's

determination      that         the    Division        made     reasonable        efforts      to

provide    services        to    defendant         and      Calvin.    Defendant         simply

failed to take advantage of those services.                                Although we are

mindful    that      the      sexual        therapy         offered   to    him    might       be

inappropriate if the minors' hearsay allegations of sexual abuse

are untrue, that is no excuse for defendant's failures to comply

with other services such as parenting classes and visitation.




                                                  51                                    A-2565-15T2
Moreover,     the    Division    reasonably    ruled    out    T.C.     as    an

alternative caretaker in light of her own deficiencies, and, as

the trial judge found, no suitable relatives of Calvin were

identified.13

      Given these considerations, we conclude that a remand to

the   trial      judge   is    appropriate    to   afford     the    judge    an

opportunity to reconsider her ruling in light of the guidance

provided    in    this   opinion.     Specifically,     the    judge    should

determine whether, if the hearsay allegations of sexual abuse

are disregarded, she would still conclude that the Division met

its burden of proving statutory prongs one, two, and four by

clear and convincing evidence.         We anticipate that the judge is

perfectly     capable     of    objectively    making   that        assessment.

Despite having literally said (perhaps as a figure of speech)

that she could not "ignore" the allegations, we are respectfully

now asking her to do so.         In remanding for that purpose, we bear

in mind the judge's unique perspective as the fact-finder who

presided over this marathon ten-day trial that spanned nearly a




13
   In this record, we detect no abuse of discretion or
prejudicial error by the trial judge in disallowing testimony by
T.C. in defendant's case, since, as we have noted, the Division
presented no competent proof that sexual abuse actually occurred
in T.C.'s residence.   However, on remand, the court shall have
the discretion to reconsider allowing testimony from T.C. on
other subjects, including the current status of her household.



                                      52                               A-2565-15T2
whole year.        We discern no compelling reason to remand this

matter to another judge.

    On remand, the trial judge shall have the discretion to

permit   updated    or   other   additional   relevant   proofs   from   the

parties, including updated expert opinions.              Such discretion,

however, shall be exercised subject to the condition that the

Division may not attempt to re-prove the truth of the girls'

hearsay allegations by other means.           It would be fundamentally

unfair to defendant to allow the Division a second opportunity

to prove in a reopened proceeding what it failed to prove by

competent evidence at the original trial.         The trial court shall

conduct a case management conference within thirty days of this

opinion to plan with counsel the remand proceedings.

    All other points raised by defendant lack sufficient merit

to warrant discussion.      R. 2:11-3(e)(1)(E).

    Affirmed as to the trial court's findings under prong three

of N.J.S.A. 30:4C-15.1(a); vacated and remanded as to prongs

one, two, and four.      We do not retain jurisdiction.




                                     53                            A-2565-15T2
