### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0128- 23 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. T.N. , Defendant-Appellant.

_______________________

Submitted January 31, 2024

– Decided February 20, 2024 Before Judges Vernoia and Gummer. On appeal from an interlocutory order of the Superi or Court of New Jersey , Law Division, Passaic County, Indictment No. 21- 08 -0428. Jospeh E. Krakora, Public Defender, attorney for appellant (James A. Sheehan, Assistant Deputy Publi c Defender, of counsel and on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Timothy P. Kerrigan, Jr., Chief Assistant Prosecutor, on the brief). Matthew J. Platkin, Attorney General, attorney for respondent Division of Child Protection and

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0128

- 23 Permanency (Christina Anne Duclos, Deputy Attorney General, on statement in lieu of brief).
PER CURIAM Defendant T.N. is charged with sexual assaults of t wo children, A.L. and V.N., one of whom is his daughter. 1 By leave granted, defendant appeals from an order denying his request for the release of New Jersey Division of Child Protection and Permanency (DCPP) records concerning its investigation of reports to the agency concerning defendant's allege d sexual assaults. We vacate the trial court's order and remand for further proc eedings. The facts are undisputed. 2 Defendant is charged in an indictment with three counts of aggravated sexual assault, three co unts of sexual assault, six counts of endangering the welfare of a child, and o ne count of terroristic threats.

1 We use initials to refer to defendant and the child victims to protect the privacy of the victims of alleged sexual assaults and becau se records related to child victims of alleged sexual assaults and the names of alleged victims of sexual offenses are excluded respectively from public acce ss under Rule 1:38 -3(c)(9 ) and (d)(12).

2 We accept the version of the facts set forth in def endant's brief and as supported by defendant's appendix on appeal. DCPP filed a letter stating it takes no position on defendant's arguments on appeal. The Passaic Coun ty Prosecutor's Office subsequently filed a letter, wh ich we accepted as its brief on appeal, stating it joined in DCPP's position. We t herefore have available only defendant's uncontested version of the facts.3 A- 0128

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The indictment alleges the crimes were committed be tween March 7, 2021, and May 5, 2021. In May 2021, A.L.'s mother took her to a hospital a fter the six-year- old child reported that defendant had sexually penetrat ed her vagina with his fingers. A physician's assistant at the hospital contacted a Sexual Assault Nurse Examiner about A.L. The Sexual Assault Nurse Exami ner then contacted the Passaic County Prosecutor's Office concerning the " six-year-old female sexual assault victim who was in the emergency room." The Passaic County Prosecutor's Office conducted an investigation, which included forensic interviews of A.L. and V.N. and interviews with others, including defendant. The Prosecutor's Office also contacted DCPP, which advised it would investigate the incidents describe d by the children and a lso investigate V.N.'s mother, who allegedly had permit ted defendant, a registered Megan's Law 3 offender, access to the children. DCPP investigat ed A.L. and V.N.'s allegations. Following his indictment, defendant sought access t o DCPP 's investigation records. Defendant's counsel moved f or an order compelling DCPP to produce its records and reports as to its " investigation of A.L. and

3 N.J.S.A. 2C:7-1 to -23.4 A- 0128

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V.N.'s allegations of sexual abuse against defendant for an in camera inspection to determine whether such records and reports must be supplied to defendant." In his brief in support of the motion, defendant ac knowledged that DCPP records are "confidential and may only be disclosed under c ertain circumstances" but noted N.J.S.A. 9:6-8.10a(b)(6) permits disclosure o f DCPP records where a court finds that "access to such records may be nec essary for determination of an issue before it." Defendant asserted the DCPP r ecords should be reviewed by the court because they might reveal statements m ade by the children and other witnesses concerning the alleged sexual assau lts that may be relevant to a challenge to testimony presented in support of the State's case at trial or might otherwise support a defense to the criminal charges

. In response to defendant's motion, the parties cons ented to the court's entry of an order directing that DCPP release to th e court its "notes, interviews and investigation reports as to [its] investigation of A.L. and V.N.'s allegations of sexual abuse against defendant" for the court "t o determine whether such records must be supplied to the defendant." Following DCPP's production of the records, the cou rt conducted an in camera inspection and rendered a decision from the bench concerning defendant's request for the records. The court first explained that it had re viewed5 A- 0128

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the records to determine if they included informati on about statements made by A.L. or V.N., or anyone else, during the DCPP inves tigation that concerned the alleged sexual assaults or any information showing A.L., V.N., or any other witness had "a motive to lie about the allegations. " The co urt cited State v. Cusick, 219 N.J. Super. 452 (App . Div. 1987), finding the decision required disclosure of otherwi se confidential DCPP records where the information is essential to the resolutio n of an issue before a court, the information is unavailable from any other sourc e, or the information "could have the effect of changing the outcome of [a] tria l." The court then concluded that based on its review of DCPP records, the reque sted information "is available from another source, and . . . the information, if revealed, would not have an effect on changing the outcome of the trial." The court further opined that defendant's right to confrontation in his criminal trial "does not require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony[.]" Based on those limited findings, the court conclude d defendant was not entitled to disclosure of any of the DCPP records i t had produced. The court entered an order denying defendant's request for re lease of the DCPP records.6 A- 0128

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We subsequently granted defendant's motion for leav e to appeal from the court's order. In his brief on appeal, defendant p resents a single argument, claiming the trial court incorrectly denied his mot ion for the release of the DCPP records. A reviewing court "'generally defer[s] to a trial c ourt's disposition of discovery matters unless the court has abused its d iscretion or its determination is based on a mistaken understanding of the applica ble law.'" State v. Brown , 236 N.J. 497, 521 (2019) (quoting Pomerantz Paper C orp. v. New Cmty. Corp. , 207 N.J. 344, 371 (2011)); see e.g. , Hammock by Hammock v. HoffmanLaRoche, Inc., 142 N.J. 356, 380 (1995) ("The quest ions whether to seal or unseal documents are addressed to the trial court's discretion."); N.J. Div. of Child Prot. & Permanency v. M.C., 456 N.J. Super. 5 68, 585 (App. Div. 2018) ("This court reviews a trial court's ruling on a mo tion for disclosure of privileged or confidential records under an abuse of discretio n standard." ). We need not, however, "'defer . . . to a discovery order that is well "wide of the mark," . . . or "based on a mistaken understanding of applicable la w."'" State v. Wyles, 462 N.J. Super. 115, 122 (App. Div. 2020) (quoting Stat e v. Hernandez, 225 N.J. 451, 461 (2016)). A court abuses its discretion wh en its decision is "made without a rational explanation, inexplicably departed from established policies,7 A- 0128

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or rested on an impermissible basis." Flagg v. Essex Cnty . Prosecutor, 171 N.J. 561 , 571 (2002) (citation omitted). We apply these st andards here. Neither the prosecutor nor DCPP dispute that defend ant may be entitled to disclosure of DCPP records concerning its invest igation of A.L. 's and V.N.'s claims defendant sexually assaulted them. As recog nized in Cusick, N.J.S.A. 9:6 -8.10a provides that "[a]ll records of child abuse reports made" pursuant to N.J.S.A. 9:6-8.10, and all information obtain ed by DCPP "in investigating " reports of child abuse "shall be kept confidential and may be disclosed only" in accord with the express provisions of the statute, 219 N.J. Super. at 456 (quoting N.J.S.A. 9:6-8.10a(a)). N.J.S.A. 9:6-8.10a(b)(6) a llows DCPP to release such records, "or parts thereof, to" "[a] court, upon its findin g that access . . . ma y be necessary for determination of an issue before the court[,]" and the court may disclose the records "in whole or in part to [a] l aw guardian, attorney, or other appropriate person upon a finding that such further disclosure is necessary for determination of an issue before the court." Cusick 219 N.J. Super. at 456 (quoting N.J.S.A. 9:6-8.10a(b)(6)). A decision whether to disclo se DCPP records pursuant to N.J.S.A. 9:6- 8.10a(b)(6) requires that a court first conduct an in camera inspection of the DCPP records in accordance with the principles established in Cusick. In8 A- 0128

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Cusick, we considered and approved the procedure em ployed by the trial court to determine whether otherwise confidential DCPP re cords concerning an investigation of an alleged sexual assault should b e released to the defendant charged with the crimes arising from the assault. Id. at 454. We explained a court must first make a preliminary determination t hat access to the records concerning the alleged victim "may be necessary for the determination of the issue of credibility" at defendant's criminal trial such that it is appropriate for the court to conduct an in camera review of the rec ords before deciding the defendant's request for their release. Id. at 457-59. Here, the State agreed an in camera review of the records was necessary; it ente red into a consent order permitting the court's in camera review of the reco rds. In Cusick, we also approved the trial court's in ca mera review of the records , finding the court properly had considered whether d isclosure was "essential to the resolution of an issue before the court" or "necessary for the conduct of the proceedings" and whether the "inform ation contained in the records could be obtained from other sources throug h diligent inquiry." Id. at 457. Finding the record supported the trial court' s determination that its analysis of those factors did not support disclosure of the records, we determined "the procedure employed by the trial court was proper in all resp ects" and the court's9 A- 0128

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decision not "to disclose the . . . records did not violate [the] defendant's Sixth Amendment right to confront witnesses or his Fifth Amendment right to due process." Id. at 459. Here, the motion court's analysis, as described in its opinion, accurately paraphrased the factors we deemed pertinent to a di sclosure- of -records determination under N.J.S.A. 9:6-8.10a(b)(6) in Cus i ck , but the court's denial of the disclosure request is untethered to any finding s of fact permitting proper appellate review of its determination and conclusio n. See R. 1:7 -4. That is, although the court accurately noted that it was req uired under Cusick to determine whether the records included information essential to a resolution of issues presented in the criminal case, whether the information was available from another source, and whether the information co uld affect the outcome of defendant's trial, the court simply stated in a conclusory fashion that none of th ose factors supports the requested disclosure and deni ed defendant's motion. A trial court is required to make specific findings of fact and conclusions of law supporting its determinations. R. 1:7 -4(a). A court's "[f]ailure to make explicit findings and clear statements of reasoning [impedes meaningful appellate review and] 'constitutes a disservice to litig ants, the attorneys, and the appellate court.'" Gnall v. Gnall, 222 N.J. 414, 4 28 (2015). Moreover, and as10 A- 0128

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noted, an abuse of discretion arises, in part, when a decision is "made without a rational explanation." Flagg, 171 N.J. at 571. We discern from the motion court's limited findings that the DCPP records include at least some information that might be eit her "essential to the resolution of an issue before the court" or "necessary for the conduct of the proceedings." Cusick, 219 N.J. Super. at 457. That is because th e court denied defendant's request, at least in part, based on a finding the r ecords included "information" that is available from another source. Th at finding was unnecessary unless the court also found there was information in the recor ds that would otherwise be subject to disclosure under the Cusick standard. In addition, the court also supported its denial of defendant's request for the records based on an alternative finding that di sclosure was not warranted because the "[C]onfrontation [C] lause of the Sixth Amendment does not require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony, as the [C]onfr ontation [C]lause would solely be a trial right." The court's statement is an apparent reference to the Supreme Court's finding in Pennsylvania v. Ritchie tha t disclosure to a criminal defendant of all confidential child abuse related r ecords is not required under the Confrontation Clause because it "only guarantee s 'an opportunity for11 A- 0128

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effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish .'" 480 U.S. 39, 53 (1987) (citation omitted). However, we considered Ritchie in our analysis in Cusick , including Ritchie's holding that a defendant's righ t to a fair trial is protected by allowing access to otherwise confidential records f ollowing a court's in camera review. Cusick, 219 N.J. Super at 462-63. Thus, the motion court's determination it could pro perly deny defendant's request for disclosure of the records simply becaus e the Confrontation Clause does not require the pretrial disclosure of all informati on that might be useful in in a defendant's challenge to unfavorable testimony d id not provide an alternative basis to deny defendant's request here. As the Supreme Court made clear in Ritchie , 480 U.S. at 60, and as we explained in Cusick , 219 N.J. Super at 462- 63 , it is only a proper in camera inspection of other wise confidential child abuse records that guarantees a defendant the right to a fair trial in a related criminal proceeding. That is what defendant argues did not take place here. Accordingly, to the extent the court relied on its finding concerning the application of the Sixth Amendment as an alternativ e basis for denying defendant's motion, it erred by misapplying the Sup reme Court's holding in Ritchie, and ours in Cusick.12 A- 0128

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The absence of appropriate findings of fact and the court's apparent misapplication of the law require reconsideration o f the court's decision and order. For those reasons, we vacate the court's or der and remand for further proceedings. On remand, the court must make approp riate findings permitting appellate review. Those findings must include but are not limited to: whether the DCPP records include any statements, reports, o r notes concerning or referring to any statements made by A.L. and V.N. o r any other witnesses related to the alleged sexual assaults; and whether the rec ords otherwise contain any other information pertaining to the sexual assaults . The court must also make findings of fact supporting its determinations, if made, that information in the records should not be turned over because it may be obtained elsewhere, and if so, where the information may be obtained. The cou rt must also make findings supporting any determination that otherwise pertine nt information will not be disclosed because it is not necessary for a determination of issues at defendant's trial or would not affect the outcome. The court shall otherwise make any other factual de terminations supporting its determination concerning the defenda nt's motion for release of the information as are pertinent to its final decision. Se e R. 1:7 -4(a). The court shall conduct such proceedings as it deems appropri ate on remand to permit a13 A- 0128

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decision on defendant's motion in accordance with t he applicable legal principles. In the court's discretion, the court m ay permit and consider further briefs, submissions, and argument by the parties. Our decision to remand the matter shall not be interpreted as expressing a dec ision on the merits of defendant's motion. Vacated and remanded for further proceedings in acc ordance with this
op inion. We do not retain jurisdiction.