RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0451-20

NEW JERSEY DIVISION

OF CHILD PROTECTION

AND PERMANENCY,

Plaintiff-Respondent,

v.

S.J. and N.L.,1

Defendants,

and

D.P.,

Defendant-Appellant.

__________________________

IN THE MATTER OF M.P.

and D.P., minors.

__________________________

Submitted November 1, 2021 – Decided November 19, 2021

1

 Pursuant to Rule 1:38-3(d)(10) to (12), we use initials and fictitious names to 

protect the confidentiality of the participants in these proceedings.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-0451-20

Before Judges Fasciale and Firko.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Essex County, Docket 

No. FN-07-0301-19.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Catherine W. Wilkes, Assistant Deputy

Public Defender, of counsel and on the briefs).

Andrew J. Bruck, Acting Attorney General, attorney for 

respondent (Melissa H. Raksa, Assistant Attorney 

General, of counsel; Amy Melissa Young, Deputy 

Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, 

attorney for minors (Nancy P. Fratz, Assistant Deputy 

Public Defender, on the brief).

PER CURIAM

In this Title 9 proceeding, defendant D.P. (Dwayne) appeals from a 

September 25, 2019 order entered by a Family Part judge under N.J.S.A. 9:6-

8.21(c)(4)(b),2finding he abused or neglected his girlfriend's son M.P. 

(Michael), born in 2017. The judge found Dwayne physically assaulted [the 

mother] while [she] was holding their child . . . in her arms . . . [and] was [seven] 

2 N.J.S.A. 9:6-8.21(c)(4)(b) provides an "abused or neglected child" includes 

children under the age of eighteen whose physical, mental, or emotional 

condition is in imminent danger of being impaired due to substantial risk of harm

caused by a parent or guardian's failure to "exercise a minimum degree of care."
3

A-0451-20

months pregnant.3 Defendant S.J. (Serena), the biological mother of Michael 

and D.P. (Dante), born in 2019, had no findings made against her. N.L. (Neil) 

is Michael's biological father, and no findings were made against him.4 For the 

reasons that follow, we affirm.

I.

We derive the following facts from the record. Serena has a long history 

with the Division of Child Protection and Permanency (Division) dating back to 

2004 after making sexual abuse allegations against her daughter J.R.'s father. 

Those allegations were unsubstantiated. In addition, Serena suffered from 

mental health issues and unstable housing, leading to the removal of J.R. in 

2005. In 2006, Serena's other daughter, A.S., was released to her father's care 

after she was born. Eventually, Serena's parental rights were terminated as to 

J.R. and A.S., who were adopted and are not involved in this appeal.

On July 3, 2018, the Division received a referral from the East Orange 

Police Department (EOPD) that Dwayne punched Serena in the face after an 

argument because she allegedly said "something bad" about his family. Initially, 

3

 Dwayne is not Michael's biological father. At the time central to this matter 

under review, Dwayne claims he was unaware of this fact.

4

 S.J. and N.L. have not filed appeals.
4

A-0451-20

Serena told the EOPD that Michael, then seven months old, was in her arms 

when this occurred. "[E]xcessive blood [was found] on the bathroom floor," and 

medical personnel at East Orange General Hospital confirmed Serena's nose was 

fractured and required surgery. However, Serena reported to Division

investigators that Michael "was sitting on the floor near the bed when the 

incident occurred." She also informed the representative that this was "the first 

physical altercation she had with [Dwayne]." At the time of the altercation,

Serena was unemployed and financially dependent on Dwayne, even though she 

received various forms of government assistance. Dwayne's history is 

significant for domestic violence and simple assault.

A week later, Serena called the Division and claimed she lied to the police 

regarding her injuries and changed her story to claim "she was beat up by two 

[women]," and Dwayne was cheating on her with one of them. Serena explained 

she blamed the attack on Dwayne "because she felt as though it was his fault." 

In response, Dwayne denied any knowledge of the incident and "vehemently 

denied punching [Serena] in the face." Dwayne told the Division investigator

he was working out of state in California at the time of the alleged incident; 

however, he did not produce his employer's travel logs to support his alibi and 

stated his attorney advised him "not to speak to anyone regarding any matters."
5

A-0451-20

Although the two were in a relationship, they resided in separate homes. 

Dwayne claimed Serena had "called the woman and invited her to the house to 

fight." The Division concluded the allegations of physical abuse were "not 

established" but assessed the scored risk level as "high" before transferring the 

matter to the permanency unit to provide services.

On October 15, 2018, Serena underwent a psychological assessment with 

Dr. Mark Singer. He found Serena:

has a history of engaging in intense and unstable 

relationships, acknowledged having had an altercation 

with some women and related this to jealousy involving 

the father of [Michael]. Of concern, [Serena] appears 

to have difficulty dealing with anger . . . [and] 

acknowledged that she has mood swings, consistent 

with [bipolar] [d]isorder. At present, she denied 

receiving any mental health treatment and indicated 

that medication may be helpful.

. . . . 

[Serena] denied any domestic violence in the 

relationship (contrary to the record) and indicated that, 

''[she and Dwayne] are still together." She reported that 

they have been together for [two] years. As [Dwayne] 

was not evaluated, no comments may be made 

regarding his parenting capacity or any risk factors he 

may or may not present. The data does suggest that 

[Serena] has some difficulty trusting [Dwayne].

Dr. Singer recommended Serena "participate in individual therapy"; "be 

evaluated by a psychiatrist in order to assess any need for medication"; maintain 
6

A-0451-20

sobriety and, "[i]f needed, an updated substance abuse evaluation should occur." 

Dr. Singer also recommended Dwyane "should be evaluated by a psychologist 

in order to have a more complete picture of the adult relationship and to identify 

any potential risk factors present." During a psychiatry evaluation, Serena 

claimed "she has been in [an] abusive relationship with [Dwyane]." She also 

stated there were "frequent episodes of abuse directed towards her and often 

times . . . in [the] presence of [Michael]." In April 2019, Dwayne was arrested 

by the Newark Police Department (NPD) for striking Serena over the head with 

a bottle while he was drunk.

On May 13, 2019, the Division received a referral from the NPD about 

another alleged altercation between Dwayne and Serena after he contacted her 

to apologize and return home with Michael. She told the NPD and the Division 

that after Dwayne picked her and Michel up after 1:00 a.m., an argument ensued 

while she was sitting in the passenger seat holding Michael on her lap. When 

Dwayne reached a stop sign, Serena jumped out of the car with Michael and ran 

for help, but Dwayne parked the car and followed them. Serena rang doorbells 

of local townhouses and screamed for help.

According to Serena, Dwayne "grabbed her and struck her in the face

multiple times with a closed fist until she fell," and then kicked her in the 
7

A-0451-20

stomach and face. She was seven months pregnant with Dante at the time of 

this incident. According to Serena, Dwayne "did not stop hitting her until he 

heard the police sirens approaching." The NPD received two calls about the 

incident. The first caller reported a male "beating a woman with a child in her 

arms." The second caller reported a "woman . . . being beaten by a tall, skinny 

man driving a burgundy truck." Two officers pursued Dwayne, who ultimately 

crashed his truck at an intersection before fleeing on foot. Serena was admitted 

to the hospital for "fetal monitoring." During his interview with the Division, 

Dwayne denied having seen Serena since May 12, 2019, but "figured she signed 

herself in[to] the crisis [unit] because . . . .[she has a] habit of signing herself in 

. . . when things [are] not going her way."

Serena reported prior domestic violence with Dwayne while Michael was 

often in her arms. She informed the Division she intended to leave Dwayne and 

apply for a temporary restraining order (TRO) under the New Jersey Domestic 

Violence Statute, N.J.S.A. 2C:25-17 to -35, and pursue criminal charges against 

him.
8

A-0451-20

On May 17, 2019, the Division filed a complaint for custody of Michael, 

which was granted that day.5 On May 29, 2019, Serena testified she had declined 

a TRO, shelter, and domestic violence services because she wanted to co-parent 

with Dwayne. When Dante was born in June 2019, the Division amended its 

complaint to include custody of him as well, which was granted by the judge. 

Serena had not initiated service for substance abuse assessment or the Batterers 

Intervention Program (BIP). During a June 19, 2019 meeting between the 

Division, Dwayne, and Serena at the hospital, a representative informed Dwayne 

he had missed a previously scheduled substance abuse assessment, and Dwayne 

claimed he was unsure if the appointment was rescheduled. A new date was 

scheduled for him.

On September 25, 2019, the fact-finding trial took place. Neither Dwayne 

nor Serena appeared. The Division offered fifteen exhibits into evidence. The 

judge excluded only one exhibit—an uncertified police report. The other 

fourteen documents were admitted without objection or any limitation on 

hearsay statements contained therein. No witnesses or documentary evidence 

was presented on behalf of Dwayne or co-defendants.

5

 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).
9

A-0451-20

In her oral decision, the judge found "it[] [was] more likely than not" that 

Dwayne had engaged in a physical altercation with Serena while she was holding 

Michael. The judge determined the Division established by a preponderance of 

the evidence that Dwayne had abused or neglected Michael because he placed 

the child at substantial risk of harm as defined by N.J.S.A. 9:6-8.21(c). On May 

8, 2020, the judge granted the Division's motion to dismiss the matter as to 

Michael, who had been reunited with his father, Neil. Dante remained in the 

Division's custody, and on July 29, 2020, the judge terminated the litigation after 

the Division filed a complaint for termination of Dwayne and Serena's parental 

rights because neither parent had complied with services.

Dwayne now appeals. He primarily argues the record is insufficient to 

establish he engaged in a physical altercation with Serena that put Michael at a 

substantial risk of harm under N.J.S.A. 9:6-8.21(c)(4)(b). Dwayne also contends 

the judge erred by improperly basing her finding on inadmissible hearsay 

statements embedded in a police report and hospital records. He also claims the 

judge failed to make credibility findings under N.J.R.E. 808.

II.

Our standard of review of the Family Part's fact-finding determination is 

limited. On appeal from orders issued in Title 9 cases, we accord considerable 
10 A-0451-20

deference to the trial court's credibility determinations and findings of fact, as 

long as those findings "are supported by adequate, substantial, and credible 

evidence." N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 278-79 

(2007) (internal quotation marks and citation omitted). "[I]f there is substantial 

credible evidence in the record to support the trial court's findings, we will not 

disturb those findings." N.J. Div. of Youth & Fam. Servs. v. L.L., 201 N.J. 210, 

226 (2010); N.J.S.A. 9:6-8.46(b) (A court's finding of abuse or neglect in a Title 

9 action must be proven by a preponderance of "competent, material, and 

relevant evidence"). "Deference is especially appropriate 'when the evidence is 

largely testimonial and involves questions of credibility.'" A.J. v. R.J., 461 N.J. 

Super. 173, 180 (App. Div. 2019) (quoting Cesare v. Cesare, 154 N.J. 394, 411-

12 (1998)).

However, "if the trial court's conclusions are 'clearly mistaken or wide of 

the mark[,]' an appellate court must intervene to ensure the fairness of the 

proceeding." L.L., 201 N.J. at 227-28 (alteration in original) (quoting N.J. Div. 

of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008)). We also owe no 

deference to the trial court's legal conclusions, which we review de novo. State 

v. Smith, 212 N.J. 365, 387 (2012) (citing State v. Handy, 206 N.J. 39, 44 

(2011)).
11 A-0451-20

Title 9 cases are fact-sensitive, and the court should "base its findings on 

the totality of circumstances." N.J. Div. of Youth & Fam. Servs. v. V.T., 423 

N.J. Super. 320, 329-30 (App. Div. 2011) (citing N.J. Div. of Youth & Fam. 

Servs. v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010)). Notably, the Title 

9 proof standard is less stringent than in guardianship cases for the termination 

of parental rights, which instead must be proven by clear and convincing 

evidence. See N.J.S.A. 30:4C-15.1(a).

N.J.S.A. 9:6-8.21(c) defines various circumstances that can comprise the 

abuse or neglect of a child. Among other things, the statute specifically covers:

a child whose physical, mental, or emotional condition 

has been impaired or is in imminent danger of 

becoming impaired as the result of the failure of his 

parent or guardian, as herein defined, to exercise a 

minimum degree of care . . . in providing the child with 

proper supervision or guardianship, by unreasonably 

inflicting or allowing to be inflicted harm, or 

substantial risk thereof, including the infliction of 

excessive corporal punishment; or by any other acts of 

a similarly serious nature requiring the aid of the court.

[N.J.S.A. 9:6-8.21(c)(4)(b) (emphasis added).]

Our Supreme Court has noted, "[t]he law's paramount concern is the safety 

of the children, and not the culpability of parental conduct." N.J. Dep't. of Child. 

& Fams., Div. of Youth & Fam. Servs. v. A.L., 213 N.J. 1, 18 (2013) (internal 

quotations and citations omitted). "The focus in abuse and neglect matters . . . 
12 A-0451-20

is on promptly protecting a child who has suffered harm or faces imminent 

danger." Ibid. (citing N.J.S.A. 9:6-8.21(c)(4)).

Further, our courts have recognized that "[p]redictions as to probable 

future conduct can only be based upon past performance." C.H., 414 N.J. Super. 

at 482 (quoting Div. of Youth & Fam. Servs. v. R.M., 347 N.J. Super. 478, 493 

(App. Div. 1978)). "We cannot conceive that the Legislature intended to 

guarantee to parents at least one chance to kill or abuse each child." N.J. Div. 

of Youth & Fam. Servs. v. F.H., 389 N.J. Super. 576, 616 (App. Div. 2007) 

(quoting J. v. M., 157 N.J. Super. 478 493 (App. Div. 1978)). Nonetheless, our 

Supreme Court has cautioned that where, as here, an "allegation of child neglect 

in which the conduct of the parent or caretaker does not cause actual harm is 

fact-sensitive and must be resolved on a case-by-case basis." Dep't of Child. & 

Fams. v. E.D.-O., 223 N.J. 166, 192 (2015).

Applying our limited scope of review and these standards here, we are 

satisfied there was competent, credible evidence in the record to support the 

judge's finding that Dwayne abused or neglected Michael. We add the following 

comments.

For the first time on appeal, Dwayne argues: (1) the judge erred in relying 

on inadmissible hearsay statements; and (2) there was insufficient evidence to 
13 A-0451-20

conclude he abused or neglected Michael. Dwayne does not contend that the 

reports were improperly admitted into evidence, including 600 pages of 

uncertified medical records.6 Rather, Dwayne asserts Serena's out-of-court 

statements made to the police, medical personnel, and Division representatives 

constitute inadmissible hearsay not subject to an exception. We disagree.

Generally, we do not consider issues not raised before the Family Part 

"unless the questions so raised on appeal go to the jurisdiction of the trial court 

or concern matters of great public interest." N.J. Div. of Youth & Fam. Servs. 

v. B.H., 391 N.J. Super. 322, 343 (App. Div. 2007) (quoting Nieder v. Royal 

Indem. Ins. Co., 62 N.J. 229, 234 (1973)). "[A]n appellate court will not reverse 

an error not brought to the attention of the trial court unless the appellant shows 

. . . it was 'plain error,' that is, 'error clearly capable of producing an unjust 

result.'" Ibid. (citing R. 2:10–2). "[A]n appellant faces an especially high hurdle 

in an appeal . . . to establish that the admission of [unopposed] evidence 

constitutes 'plain error' . . . ." N.J. Div. of Child Prot. & Perm. v. J.D., 447 N.J. 

Super. 337, 349-50 (App. Div. 2016) (citations omitted).

6

 Although the Newark Beth Israel Medical Center medical records did not 

include an authenticating certification, at trial counsel for the Division

represented to the judge that the hospital records each contained certifications 

and the medical records were admitted into evidence by agreement.
14 A-0451-20

"Hearsay is not admissible except as provided by [the New Jersey Rules 

of Evidence] or by other law." N.J.R.E. 802; see also N.J.R.E. 801(c) (defining 

"hearsay" as "a statement that . . . the declarant does not make while testifying 

at the current trial or hearing . . . and . . . [is] offer[ed] in evidence to prove the 

truth of the matter asserted in the statement"). N.J.S.A. 9:6–8.46(a)(3) provides 

Division records may be admitted as evidence "'of any condition, act, 

transaction, occurrence or event relating to a child in an abuse or neglect 

proceeding . . . [as] proof of that condition, act, transaction, occurrence or event' 

if it meets the prerequisites for admission of a business record." J.D., 447 N.J. 

Super. at 347 (alterations in original).

The New Jersey Rules of Evidence provides a business record may be 

admitted if it "was made in the regular course of business and it was in the 

regular practice of that business to make such writing or other record." N.J.R.E. 

803(c)(6); see also R. 5:12-4(d) (stating the Division "shall be permitted to 

submit into evidence . . . reports by staff personnel or professional consultants 

[and the] [c]onclusions drawn from the facts stated therein shall be treated as 

prima facie evidence, subject to rebuttal"). "[H]earsay embedded in such 

records[,] [however,] must satisfy a separate hearsay exception." J.D., 447 N.J. 

Super. at 347-48 (citing N.J. Div. of Child Prot. & Perm. v. R.W., 438 N.J. 
15 A-0451-20

Super. 462, 466–67 (App. Div. 2014); N.J. Div. of Youth & Fam. Servs. v. M.G., 

427 N.J. Super. 154, 173–74 (App. Div. 2012)).

A "[d]efendant's own statements are admissible as statements of a partyopponent." Id. at 348 (citing N.J.R.E. 803(b)(1)). An allegedly abused or 

neglected child's statements are generally "admissible as those of a child 

victim." Ibid. (citing N.J.S.A. 9:6–8.46(a)(4)). The statements of a third party, 

such as a police officer, however, "must satisfy a separate exception." Ibid.

A "belated challenge to the admission of [evidence] . . . is barred by the 

invited error doctrine." Ibid. (citing N.J. Div. of Youth & Fam. Servs. v. M.C. 

III, 201 N.J. 328, 340-41 (2010)). "The doctrine of invited error operates to bar 

a disappointed litigant from arguing on appeal that an adverse decision below 

was the product of error, when that party urged the lower court to adopt the 

proposition now alleged to be error." M.C. III, 201 N.J. at 340 (quoting Brett v. 

Great Am. Recreation, 144 N.J. 479, 503 (1996)). Where a litigant does not 

object to the admission of relevant evidence, the litigant effectively "consent[s] 

to the admission of the [evidence]." See id. at 341. Therefore, "depriv[ing] the 

[litigant's adversary] of the opportunity to overcome [the] objection[,] . . . . [to] 

take[] steps to satisfy any evidentiary requirements [thereafter] needed for the 
16 A-0451-20

admission of the [evidence objected to,] or [to] present[] [alternative evidence] 

in place of the [evidence objected to]." Ibid.

"[H]earsay[,] subject to a well-founded objection[,] is generally evidential 

if no objection is made." J.D., 447 N.J. Super. at 348-49 (citing State v. 

Ingenito, 87 N.J. 204, 224 n.1 (1981) (Schreiber, J., concurring)). We have 

recognized: 

[a] party is free to waive objection to the admission of 

hearsay evidence. In some cases, parties may have no 

reason to question the accuracy of such hearsay, or may 

make “a strategic decision to try the case based on the 

documents, instead of possibly facing a witness's direct 

testimony.”

[Id. at 349 (quoting N.J. Div. of Child Prot. & Perm. v. 

N.T., 445 N.J. Super. 478, 503 (App. Div. 2016)).]

It is generally not the Family Part's "responsibility, particularly in a bench trial 

with represented parties, to intervene with a well-founded hearsay objection, 

whenever counsel choose not to raise one of their own." Ibid. "When 

objectionable hearsay is admitted in a bench trial without objection, we [must]

presume that the fact-finder appreciates the potential weakness of such proofs, 

and takes that into account in weighing the evidence." Ibid. (citations omitted). 

"[A]n appellant faces an especially high hurdle in an appeal . . . to establish that 
17 A-0451-20

the admission of such evidence constitutes 'plain error.' . . . ." Id. at 349 (citing 

R. 2:10-2). 

First, Dwayne's counsel consented to the admittance of the evidence. A 

party who fails to object to the admittance of evidence, effectively consents to 

its admittance. In M.C. III, where "the one document that defendant objected to 

. . . was not admitted into evidence," the Court held "[t]he record [wa]s clear 

that defendant consented to the admission of the [other] relevant documents." 

201 N.J. at 341. The Court found "no error in the trial court's reliance on defense 

counsel's indication that he did not object to the admission of the various 

documents." Id. at 342. Similarly, in J.D., where "defendant through his counsel 

agreed to admission into evidence of the documents" and "the Division relied on 

defendant's attorney's consent to the admission into evidence of the documents," 

the appellate court held the Family Part did not commit "plain error by 

considering the embedded hearsay in [the] documents admitted into evidence." 

447 N.J. Super. at 348, 350. 

Where "objectionable hearsay is admitted in a bench trial without 

objection, we presume that the fact-finder appreciates the potential weakness of 

such proofs and takes that into account in weighing the evidence." Id. at 349

(citations omitted). We will not "weigh the evidence, assess the credibility of 
18 A-0451-20

witnesses, or make conclusions about the evidence." Slutsky v. Slutsky, 451 

N.J. Super. 332, 344 (App. Div. 2017) (quoting Mountain Hill, LLC v. Twp. of 

Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008)). Such findings are left 

to the deference of the Family Part, especially "when the evidence is largely 

testimonial and involves questions of credibility." A.J. v. R.J., 461 N.J. Super. 

173, 180 (App. Div. 2019) (quoting Cesare, 154 N.J. at 411-12). 

In the matter under review, defense counsel objected to only one 

document—the police report—which was not admitted into evidence. And,

Dwayne's counsel consented to the admission of the other relevant documents. 

J.D., 447 N.J. Super. at 348. Because the documents were admitted into 

evidence unredacted and without any objection in whole or in part, the judge 

was allowed to consider the embedded hearsay within those documents. Id. at 

348, 350. We cannot overlook the fact that Dwayne's counsel had Serena's 

medical records admitted into evidence and thereby had the strategic advantage 

of arguing she suffered from mental illness.

As such, the Family Part did not commit plain error by considering 

Serena's statements included in the Division, police, and medical reports. Thus, 

we will not disturb the judge's factual findings unless such findings were 

"manifestly unsupported by or inconsistent with the competent, relevant[,] and 
19 A-0451-20

reasonably credible evidence as to offend the interest of justice." Slutsky, 451 

N.J. Super. at 344 (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 

65 N.J. 474, 484 (1974)). Here, we discern no error.

Dwayne's argument is further weakened by the fact that he relies on some 

of the now contested evidence in his argument on appeal. Dwayne's counsel 

asserted that the information that the Division is relying on in this case to 

substantiate my client is coming from [Serena] who I believe the evidence 

indicates . . . is not completely credible. Specifically, . . . the evidence shows 

that she has mental health issues." We note that Dwayne specifically referenced 

the medical records indicating substance abuse issues when Dante was born and 

the recanted allegations made during the first Division referral on July 3, 2019. 

We are convinced the judge did not rely on inadmissible hearsay evidence to 

make her findings. 

Second, even if Serena's out-of-court statements are not barred by the 

invited error doctrine, the statements still qualify as a hearsay exception. 7 Under

7

 Although other exceptions may apply, including N.J.R.E. 803(c)(4), 

statements for purposes of medical diagnosis or treatment, the most vital 

statements to Dwayne's appeal are those where Serena identified Dwayne as her 

assailant and claims previous incidences of domestic violence, which she 

claimed occurred often with Michael in her arms. Such statements may qualify 

as a hearsay exception under N.J.R.E. 803(c)(25), statements made against 

interest.
20 A-0451-20

N.J.R.E. 803(c)(25), a hearsay statement is admissible if the statement, "at the 

time of its making[,] [is] so far contrary to the declarant's [interest] . . . that a 

reasonable person in [the] declarant's position would not have made the 

statement unless the person believed it to be true." The declarant "need not be 

a party" in the case for the statement to be admissible. Rowe v. Bell & Gossett 

Co., 239 N.J. 531, 559 (2019) (citations omitted).

A parent's out-of-court statement reporting domestic violence in the home 

to the Division are against his or her interest. N.T., 445 N.J. Super. at 498-99. 

In N.T., the defendant appealed the Family Part's finding that he had abused or 

neglected his stepson by allowing him to witness domestic violence perpetrated

against co-defendant, defendant's wife, and stepson's biological mother. Id. at 

486. We held the co-defendant's statements contained in reports and evaluations 

qualified under the hearsay exception for statements against interest because 

"the children could be removed." Id. at 498 (citing N.J.R.E. 803(c)(25)).

Here, Serena has a well-documented history with the Division. Two of 

her children had already been removed from her custody due to Serena's mental 

health issues and unstable housing. In speaking with the Division representative 

following the alleged physical assault on May 13, 2019, Serena confirmed she
21 A-0451-20

had been "made aware the Division would be contacted as a result of the family 

violence."

When the Division asked if Serena was "aware how the Division can help 

ensure [Michael]'s safety, [Serena] stated, 'Taking him from me.'" 

Consequently, her statements to the police, hospital staff, and Division were 

against her interests because "a reasonable person in [Serena]'s position would 

not have made the statement unless the person believed it to be true," N.J.R.E.

803(c)(25), because the statements ran the risk "the children could be removed," 

N.T., 445 N.J. Super. at 498. We conclude Dwayne's argument that the judge 

relied on inadmissible hearsay unpersuasive. 

For the reasons stated above, the judge did not abuse her discretion in 

admitting and considering Serena's "hearsay" statements included in plaintiff's 

testimony and admitted reports because Dwayne consented to the inclusion of 

the statements by not objecting to their admission at trial. Moreover, the 

statements otherwise qualify as a hearsay exception. Therefore, we may reject 

Dwayne's argument and conclude the judge's findings are supported by 

adequate, substantial, and credible evidence in the record.
22 A-0451-20

III.

Next, Dwayne argues the judge's finding that he abused and neglected 

Michael was based on a misunderstanding of applicable legal principles because 

the judge "did not have sufficient, competent, admissible evidence." 

Specifically, Dwayne argues N.J.S.A. 9:6-8.21(c)(4) requires: (1) 

"psychological" evidence Michael "was emotionally or mentally harmed by 

witnessing the alleged incident"; (2) "trustworthy" evidence Dwayne "failed to 

exercise a minimum degree of care"; and (3) "particularized evidence" of "a 

substantial or ongoing risk of harm" by a preponderance of the evidence.

First, psychological evidence of emotional or mental harm is not required. 

A child need not be harmed to be abused or neglected. The Legislature's intent 

in enacting Title 9 was "to assure that the lives of innocent children are 

immediately safeguarded." N.J.S.A. 9:6-8.8(a). In deciding Title 9 cases, the 

Family Part judge must be mindful that the "safety of the children" is the 

"paramount concern and the best interests of the child shall be a primary 

consideration." Ibid. "The focus in abuse and neglect matters, thus, is on 

promptly protecting a child who has suffered harm or faces imminent danger." 

A.L., 213 N.J. at 18 (citing N.J.S.A. 9:6-8.21(c)(4)) (emphasis added). In 

determining whether a child has been abused or neglected, a court must consider 
23 A-0451-20

"the totality of the circumstances." V.T., 423 N.J. Super. at 329-30 (citing C.H., 

414 N.J. Super. at 481).

Title 9's definition of an "abused or neglected child" includes: 

child[ren] whose physical, mental, or emotional 

condition . . . is in imminent danger of becoming 

impaired as the result of the failure of [a] parent . . . to 

exercise a minimum degree of care . . . in providing the 

child with proper supervision . . . by unreasonably 

inflicting or allowing to be inflicted harm, or 

substantial risk thereof . . . .

[N.J.S.A. 9:6-8.21(c)(4).]

By the express wording of the statute, a child who has not yet been 

impaired but is in imminent danger of being impaired may be considered an 

"abused or neglected child" under the statute. A.L., 213 N.J. at 23 (determining 

that "a finding of abuse and neglect can be based on proof of imminent danger 

and substantial risk of harm" (citing N.J.S.A. 9:6-8.21(c)(4))). A court "need 

not wait to act until a child is actually irreparably impaired by parental 

inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)

(citing N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 616 n1.4 

(1986)). Hence, the Division must merely prove, based on the totality of the 

circumstances, that it’s more than likely than not there exists a substantial risk 

of harm. 
24 A-0451-20

Second, the "trustworthiness" of the evidence is left to the deference of 

the Family Part judge, especially "when the evidence is largely testimonial and 

involves questions of credibility." A.J., 461 N.J. Super. at 180 (quoting Cesare, 

154 N.J. at 411-12). A guardian's actions need not be intentional to be abusive 

or neglectful. "To find abuse or neglect, the parent must 'fail[] . . . to exercise a 

minimum degree of care.'" E.D.-O., 223 N.J. at 179 (alterations in original)

(quoting N.J.S.A. 9:6-8.21(c)(4)(b)). This requires "conduct that is grossly 

negligent because it is willful or wanton . . . but not necessarily intentional." 

Ibid. (quoting G.S. v. Dep't of Hum. Servs., 157 N.J. 161, 178 (1999)). "Willful 

or wanton" conduct is "done with the knowledge that injury is likely to, or 

probably will, result." Ibid. (quoting G.S., 157 N.J. at 178). 

A parent or guardian is liable for the foreseeable consequences of his or 

her actions, the dangerous risks "an ordinary reasonable person would 

understand . . . [the] situation poses," regardless of his or her intentions. G.S., 

157 N.J. at 179 (citations omitted). "[W]here a parent or guardian acts in a 

grossly negligent or reckless manner, that deviation from the standard of care 

may support an inference that the child is subject to future danger." N.J. Div. 

of Youth & Fam. Servs. v. T.B., 207 N.J. 294, 307 (2011). Here, the Division

was required to show, based on the totality of the circumstances, that it was more 
25 A-0451-20

than likely than not Dwayne's conduct on May 13, 2019, created a foreseeable 

consequence of risk of harm to Michael, which an ordinary reasonable person 

would understand. 

Third, evidence of a substantial or ongoing risk of "harm is fact-sensitive 

and must be resolved on a case-by-case basis." E.D.-O., 223 N.J. at 192. Courts 

undertaking this analysis "must avoid resort[ing] to categorical conclusions." 

Id. at 180 (citing T.B., 207 N.J. at 309). "Instead of filling in missing 

information . . . judges must engage in a fact-sensitive analysis turning on 

'particularized evidence.'" R.W., 438 N.J. Super. at 471 (quoting A.L., 213 N.J. 

at 28). The judge "must weigh the entire relationship [and particular history] 

between the parties and must specifically set forth their findings of fact in that 

regard." Cesare, 154 N.J. at 405. "[I]n making their determinations, [the Family 

Part] can consider evidence of a defendant's prior abusive acts regardless of 

whether those acts have been the subject of a domestic violence adjudication." 

Ibid. (citations omitted). The Division must merely show, based on the totality 

of the circumstances, that it’s more than likely than not domestic violence is an 

ongoing risk of harm to a child. 

Here, during the fact-finding trial, the judge admitted all of the Division's 

evidence, save an uncertified police report, and considered testimony from a 
26 A-0451-20

Division representative, who the judge found to have "good recollection and was 

consistent with the other evidence." "[H]er demeanor on the stand led th[e] 

[judge] to find her testimony to be credible." Moreover, the judge appropriately 

found that Dwayne placed Michael at sufficient risk of harm based on the totality 

of the circumstances and the child was abused and neglected. Dwayne produced 

no evidence to the contrary.

To the extent not addressed, Dwayne's remaining arguments lack 

sufficient merit to warrant discussion. Rule 2:11-3(e)(1)(E).

Affirmed.