RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5303-17T4

NEW JERSEY DIVISION

OF CHILD PROTECTION 

AND PERMANENCY, 

Plaintiff-Respondent,

v. 

Q.V.P.,

Defendant-Appellant, 

and

W.W., A.M., and T.C.,

Defendants.

______________________________

IN THE MATTER OF K.P., WI.W.

and I.C., 

Minors.

______________________________

Submitted May 22, 2019 – Decided August 2, 2019

Before Judges Vernoia and Moynihan.

NOT FOR PUBLICATION WITHOUT THE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-5303-17T4

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Passaic County, 

Docket No. FN-16-0137-17.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Robyn A. Veasey, Deputy Public Defender, 

of counsel; Carol L. Widemon, Designated Counsel, on 

the briefs).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Jason Wade Rockwell, Assistant Attorney 

General, of counsel; Kathryn A. Kolodziej, 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

Following the entry of the trial court's final fact-finding order that she 

abused or neglected her children, K.P. (Karen) and Wi.W. (Winston), Q.V.P. 

(Qianna)

1

appeals contending the court erred in relying on inadmissible evidence 

to deny her motion for dismissal – ostensibly made at the close of the State's 

case pursuant to Rule 4:37-2(b) – of the New Jersey Division of Child Protection 

 

1

 We derive the pseudonyms from those set forth in Qianna's merits brief to 

protect the privacy of the children and preserve the confidentiality of these 

proceedings. No disrespect is intended.
3

A-5303-17T4

and Permanency's (Division) Title Nine claims after the Division presented its 

evidence at the fact-finding hearing. She argues:

I. REVERSAL OF THE TITLE NINE JUDGMENT 

AGAINST QIANNA IS MANDATED BECAUSE 

THE TRIAL COURT COMMITTED REVERSIBLE 

ERROR IN ADMITTING INTO EVIDENCE AT THE 

FACT-FINDING HEARING DOCUMENTS THAT 

DID NOT MEET THE REQUIREMENTS OF N.J.R.E. 

(803)(C)(6), THE BUSINESS RECORDS 

EXCEPTION TO THE HEARSAY RULE, AND 

N.J.R.E. 808, GOVERNING THE ADMISSIBILITY 

OF EXPERT OPINIONS INCLUDED IN 

ADMISSIBLE HEARSAY STATEMENTS, AND 

RELIED UPON THOSE DOCUMENTS IN DENYING 

THE MOTION FOR DISMISSAL OF THE STATE'S 

TITLE NINE CLAIMS AGAINST QIANNA, A 

RESULT THAT THE COURT MAY NOT 

OTHERWISE HAVE REACHED ABSENT ITS 

RELIANCE ON THOSE DOCUMENTS.

A. Reversal of the trial court's denial of Qianna's 

counsel's motion to dismiss all Title Nine claims 

against Qianna is mandated because the trial court 

committed reversible error in admitting inadmissible 

hearsay documents into evidence and the court's 

reliance on those documents led it to deny the motion 

to dismiss, a result it may otherwise not have reached.

B. The trial court's denial of Qianna's counsel's motion 

for dismissal must be reversed because it committed 

reversible error in admitting into evidence the complex 

diagnoses and opinions contained in the diagnostic 

impression form in the absence of expert testimony, in 

contravention of the requirements of N.J.R.E. 808.
4

A-5303-17T4

II. BECAUSE AT THE TIME THE STATE RESTED 

ITS CASE, IT HAD NOT PROVEN A NEXUS 

BETWEEN ANY DRUG USE BY QIANNA AND 

ACTUAL HARM OR AN IMMINENT DANGER OF 

HARM TO THE CHILDREN, THE TRIAL COURT 

COMMITTED REVERSIBLE ERROR IN DENYING 

DEFENSE COUNSEL'S MOTION FOR DISMISSAL 

OF THE STATE'S TITLE NINE CLAIMS AGAINST 

HER AND THIS COURT SHOULD REVERSE THE 

JUDGMENT AGAINST HER UNDER N.J.S.A. 9:6-

8.21(c)(4)(b) AND REMAND THE MATTER FOR 

ENTRY OF AN ORDER DISMISSING ALL TITLE 

NINE CLAIMS AGAINST HER.

III. THIS MATTER SHOULD BE REVERSED AND 

REMANDED, BECAUSE, EVEN IF NONE OF THE 

ERRORS COMMITTED BY THE TRIAL COURT 

WOULD SINGULARLY CONSTITUTE 

REVERSIBLE ERROR, THE ACCUMULATION OF 

ERRORS CONSTITUTES PLAIN ERROR CLEARLY 

CAPABLE OF CAUSING AN UNJUST RESULT.

Based on our review of the record in light of the applicable law, we affirm in 

part and reverse in part.

The Division's only witness was a caseworker through whom the Division 

introduced eight documentary exhibits that were admitted into evidence: a 

December 27, 2016 Division screening summary of a referral concerning 

Qianna's use of PCP (P-1); an investigation summary assigned December 27, 

2016 (P-2); two February 14, 2017 screening summaries of a referral alleging 

Qianna tested positive for PCP while staying in a shelter (P-7) and one reporting 
5

A-5303-17T4

she and Winston were going to be removed from the shelter because she tested 

positive for PCP (P-8); an investigation summary assigned on February 14, 2017 

(P-9); two BioReference Laboratories reports of Qianna's urinalyses conducted

on December 30, 2016 (P-3) and January 26, 2017 (P-6) which were positive for 

PCP; and a Diagnostic Impression/Recommendation Form (Form) from 

Preferred Children's Services (PCS) completed after Qianna was evaluated on 

December 28, 2016 pursuant to the Division's referral to PCS's Child Protection 

Substance Abuse Initiative (P-4). The trial court denied Qianna's motion to 

dismiss, concluding the Division established that "if the mother is taking PCP 

while she has care, custody of her child, then the child is abused or neglected as 

there is a substantial likelihood that the child could be injured and there's a risk 

of harm."

Qianna contends the court erred by relying on: both lab reports and the 

Form because the Division did not qualify them as business records pursuant to 

Rule 803(c)(6), N.J.R.E. 803(c)(6); the complex diagnoses and opinions in the 

Form which were not offered through an expert produced at the hearing or 

otherwise admissible under Rule 808, N.J.R.E. 808. She also argues that the 

Division did not prove a nexus between her alleged PCP use and any imminent 

danger of harm to the children.
6

A-5303-17T4

In its determination of a motion for dismissal at the close of the evidence 

– whether it be a motion for directed verdict at the close of trial, R. 4:40-1, or a 

motion for involuntary dismissal under Rule 4:37-2(b) – the trial court "must 

accept as true all evidence presented . . . and the legitimate inferences drawn 

therefrom, to determine whether the proofs are sufficient to sustain a judgment." 

Prioleau v. Ky. Fried Chicken, Inc., 434 N.J. Super. 558, 569 (App. Div. 2014), 

aff'd as modified, 223 N.J. 245, 258 (2015). The "court is not concerned with 

the worth, nature or extent (beyond a scintilla) of the evidence, but only with its 

existence, viewed most favorably to the party opposing the motion." Ibid.

(quoting Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969)).

"Under Rule 4:37-2(b), a motion for a directed verdict is granted only if, 

accepting the plaintiff's facts and considering the applicable law, 'no rational 

[fact-finder] could draw from the evidence presented' that the plaintiff is entitled 

to relief." Ibid. (quoting Pitts v. Newark Bd. of Educ., 337 N.J. Super. 331, 340 

(App. Div. 2001)). If reasonable minds could reach different conclusions, the 

motion must be denied. Id. at 570. We apply the same standard that governed 

the trial court when reviewing an order granting or denying a motion for a 

directed verdict. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003). Under this 

standard, we need not parse all of Qianna's evidentiary arguments because there 
7

A-5303-17T4

was sufficient evidence in the record which, together with the reasonable 

inferences drawn therefrom, supports denial of her motion to dismiss the 

Division's claims regarding Winston.

The Division caseworker testified that the investigation summary (P-2)

resulted from the December 27, 2016 referral, that it was part of the Division's 

regular business practice to document the results of an investigation in a 

summary and that the summary – approved on February 24, 2017 – was made at 

the time of or shortly after the investigation. The summary reported events 

through February 14 and 15, 2017, the dates on which Winston and Karen were, 

respectively, removed by the Division from Qianna's care. Similarly, the 

caseworker testified she, as part of the Division's regular business practice, 

completed the investigation summary (P-9) after the investigation – assigned on 

February 14, 2017. On March 6, 2017, the caseworker approved the 

investigation summary which reported events through February 16, 2017.

The caseworker's testimony established that both investigation summaries 

were admissible under N.J.S.A. 9:6-8.46(a) and Rule 5:12-4(d). The statute, in 

pertinent part, provides:

In any hearing under this act, . . . (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 . . . 
8

A-5303-17T4

(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 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. . . . All other 

circumstances of the making of the memorandum, 

record or photograph, including lack of personal 

knowledge of the making, may be proved to affect its 

weight, but they shall not affect its admissibility . . . .

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

Rule 5:12-4(d) permits the Division "to submit into evidence, pursuant to 

N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional 

consultants." As we recognized in In re Guardianship of Cope, because an 

evidentiary requirement that "all [Division] personnel having contact with a 

particular case to give live testimony on all the matters within their personal 

knowledge would cause an intolerable disruption in the operation of the"

Division, 106 N.J. Super. 336, 343 (App. Div. 1969), it should be allowed to 

submit "reports by [Division] staff personnel (or affiliated medical, psychiatric, 
9

A-5303-17T4

or psychological consultants), prepared from their own first-hand knowledge of 

the case, at a time reasonably contemporaneous with the facts they relate, and in 

the usual course of their duties with the [Division]," ibid. "Reports of this type, 

prepared by the qualified personnel of a state agency charged with the 

responsibility for overseeing the welfare of children in the State, supply a 

reasonably high degree of reliability as to the accuracy of the facts contained 

therein." Id. at 344.

The caseworker testified that the Division regularly documented its 

investigations in investigation summaries. As our Supreme Court noted in New 

Jersey Division of Youth and Family Services v. M.C. III, 201 N.J. 328, 347 

(2010), "[Rule] 803(c)(6) is the business-records exception to the hearsay rule 

and 801(d) defines the word business to 'include[ ] every kind of business, 

institution, association, profession, occupation and calling, whether or not 

conducted for profit, and also includes activities of governmental agencies.'" 

(alteration in original) (quoting N.J.R.E. 801(d)). The Division is therefore a 

"business" and the testimony established it was the Division's regular practice 

to make the summaries, N.J.R.E. 803(c)(6); and that they were "made in the 

regular course of business" and were "prepared within a short time of the act, 

condition or event being described," M.C. III, 201 N.J. at 347 (quoting State v. 
10 A-5303-17T4

Matulewicz, 101 N.J. 27, 29 (1985)). We also discern that, contrary to Qianna's

objection that the reports did not contain first-hand information, a review of the 

wording of the reports reveals the pertinent sections were written in the firstperson by "this worker."

The properly admitted summaries contained Qianna's admissions –

independently admissible under Rule 803(b)(1);

2

see N.J.R.E. 805; Konop v. 

Rosen, 425 N.J. Super. 391, 402 (App. Div. 2012) (explaining that each hearsaywithin-hearsay statement may be admitted so long as the basis for admission is 

separately considered as to each) – that established her abuse or neglect of 

Winston. As documented in exhibit P-2, when the Division worker responded 

to the December 27, 2016 referral and addressed Qianna about the allegations 

of PCP use, Qianna told the worker that she initially thought Options Counseling 

Center had called the Division because she had "recently provided a urine screen 

to [the] Center and tested positive." Although she denied any current use of 

PCP, she "reported she last smoked '[two] months ago.'" The report also 

documents that Qianna and Winston were discharged that night by the shelter 

because the positive drug test contravened the shelter's rules, necessitating the 

 

2

 Rule 803(b)(1) provides that "[a] statement offered against a party which is 

. . . the party's own statement" is not excluded by the hearsay rule. N.J.R.E. 

803(b)(1).
11 A-5303-17T4

Division's intervention to locate and transport Qianna and Winston to a motel. 

On the way to the motel, Qianna agreed to report to the Division office the next 

day for a substance abuse assessment. At the office, Qianna told the worker she 

had never before been in substance abuse treatment and "admitted that she had 

been using PCP for 'years[]'" but "did not answer how often she was using the 

substance."

The subsequent investigation summary (P-9) evinced that the Division 

received notice on February 14, 2017 that Qianna and Winston, who had been 

relocated to a shelter facility at Eva's Family Shelter, were being removed 

because Qianna tested positive for PCP. When workers responded to the shelter 

facility and informed Qianna they were there to conduct an emergency removal 

of Winston, Qianna "immediately became upset and informed [the] workers that 

she informed staff when she came to the facility . . . that she would test positive." 

In an effort to forestall Winston's removal, Qianna explained "that she was going 

to begin a substance abuse program later in the week and that she wasn't giving 

her son to anyone."

Title Nine, N.J.S.A. 9:6-8.21 to -8.73, which governs Division-initiated 

actions alleging abuse or neglect of children, see N.J. Div. of Youth & Family 
12 A-5303-17T4

Servs. v. L.A., 357 N.J. Super. 155, 163 (App. Div. 2003), defines an "abused 

or neglected child," in relevant part, as

a child less than 18 years of age . . . whose physical, 

mental, or emotional condition has been impaired or is 

in imminent danger of becoming impaired as the result 

of the failure of his parent or guardian . . . to exercise a 

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

proper supervision or guardianship, by unreasonably 

inflicting or allowing to be inflicted harm, or 

substantial risk thereof, including the infliction of 

excessive corporal punishment; or by any other acts of 

a similarly serious nature requiring the aid of the court.

[N.J.S.A. 9:6-8.21(c)(4)(b); see also N.J.S.A. 9:6-

8.9(d)(2) (defining "abused child" under Title Nine).]

"If there is no evidence of actual harm . . . the statute requires a showing of 

'imminent danger' or a 'substantial risk' of harm before a parent or guardian can 

be found to have abused or neglected a child." N.J. Dep't of Children & 

Families, Div. of Youth and Family Servs. v. A.L., 213 N.J. 1, 8 (2013) (quoting 

N.J.S.A. 9:6-8.21(c)). Importantly, "[c]ourts 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).

The investigation summaries evidence that then four-year-old Winston,

born April 12, 2012, while in Qianna's custody and care, twice lost shelterhousing during the winter of 2016-2017 as a result of Qianna's admitted PCP 
13 A-5303-17T4

use, making him abused or neglected. Qianna's arguments based on inapposite 

cases, including New Jersey Division of Youth and Family Services v. V.T., 423 

N.J. Super. 320 (App. Div. 2011) and A.L., 213 N.J. 1, are without sufficient 

merit to warrant further discussion. R. 2:11-3(e)(1)(E). There was an obvious 

nexus between Qianna's drug use and the substantial risk of harm resulting from 

her failures to abide by the rules of the shelters that housed her and her son. 

Without reliance on the contested lab reports and the Form, these proofs are 

sufficient to overcome Qianna's motion to dismiss the Division's claims 

regarding Winston.

3

 

We cannot reach the same conclusion regarding the Division's proofs 

supporting the alleged abuse or neglect of then fifteen-year old Karen, born 

December 30, 2001, who did not reside with Qianna. In December 2016, Qianna

 

3

 Our ruling does not imply that the other documents were inadmissible; only 

that the investigation summaries provided sufficient evidence to deny the motion 

to dismiss. See M.C. III, 210 N.J. at 347, 348 (recognizing "the Division's need 

to secure the services of a range of professionals when investigating a claim of 

child abuse," and that the reports of "professional consultants" were not 

inconsistent with the purpose of Rule 5:12-4(d)); see also N.J. Div. of Child 

Prot. & Permanency v. R.W., 438 N.J. Super. 462, 468 (App. Div. 2014) 

(holding "[u]nquestionably, Rule 5:12-4(d) makes Division documents 

admissible when they contain 'reports by staff personnel or professional 

consultants.' But trial judges must nonetheless fully assess the evidential issues 

inherent in the Division's submission of documents which include statements by 

others than Division workers or experts." (quoting R. 5:12-4(d))).
14 A-5303-17T4

told the Division worker, as documented in exhibit P-2, that Karen was "under 

her custody [but] live[d] with her paternal aunt and grandmother." The later

investigation summary (P-9) recorded that Karen told the Division worker on 

February 15, 2017 that she spoke with Qianna "on the phone almost daily" and 

saw her mother "usually after school"; her last in-person visit was the day prior. 

None of the parties, however, have pointed to any evidence presented in the 

Division's case-in-chief that tethered Qianna's drug use to any substantial risk 

of harm to Karen. Indeed, the trial court, in finding that Qianna abused or 

neglected Karen, relied on Qianna's own testimony – made after her motion to 

dismiss – during the fact-finding hearing to provide that link. The trial court 

therefore erred in denying Qianna's motion to dismiss the abuse or neglect

claims pertaining to Karen. Frugis, 177 N.J. at 269.

We are constrained to reverse and remand this case for entry of a revised 

fact-finding order, vacating the finding of abuse or neglect as to Karen. We 

affirm the trial court's finding of abuse or neglect as to Winston.

Affirmed in part, reversed and remanded in part. We do not retain 

jurisdiction.