RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2114-12T2

NEW JERSEY DIVISION OF CHILD 

PROTECTION AND PERMANENCY,

Plaintiff-Appellant/

Cross-Respondent,

v.

I.B.,

Defendant-Respondent/

Cross-Appellant,

and

A.E.,

Defendant-Respondent.

_________________________________

IN THE MATTER OF R.B., a Minor.

____________________________________________

Argued October 7, 2014 – Decided

Before Judges Fisher, Nugent1 and Accurso.

 

1 Judge Nugent did not participate in oral argument. The 

parties, however, have consented to his participation in the 

decision. R. 2:13-2(b).

August 11, 2015

APPROVED FOR PUBLICATION

August 11, 2015

APPELLATE DIVISION
2 A-2114-12T2

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Essex 

County, Docket No. FN-07-460-12.

Michelle Mikelberg, Deputy Attorney General, 

argued the cause for appellant/crossrespondent (John J. Hoffman, Acting Attorney 

General, attorney; Andrea M. Silkowitz, 

Assistant Attorney General, of counsel; Ms. 

Mikelberg, on the briefs).

Stephen S. Berowitz argued the cause for 

respondent/cross-appellant I.B. (Shaievitz & 

Berowitz, attorneys; Mr. Berowitz, on the 

briefs).

Respondent A.E. joins in the brief of 

appellant NJDCCP. 

Todd Wilson, Designated Counsel, argued the 

cause for minor (Joseph E. Krakora, Public 

Defender, Law Guardian, attorney; Mr. 

Wilson, on the brief).

The opinion of the court was delivered by 

ACCURSO, J.A.D.

The central issue in this Title Nine trial was whether a 

licensed psychologist retained by the Division of Child 

Protection and Permanency to evaluate a five-year old could 

offer his opinion on the nature of her reported symptoms and his 

diagnosis to corroborate the child's hearsay report that her 

father made her touch his genitals. The trial judge heard the 

testimony pursuant to N.J.R.E. 104 but determined to exclude it

based on a line of criminal cases starting with State v. J.Q., 

130 N.J. 554 (1993), in which the Supreme Court rejected the use 
3 A-2114-12T2

of Child Sexual Abuse Accommodation Syndrome evidence as 

substantive proof of child abuse. 

The State's expert in this case, however, did not offer an 

opinion on Child Sexual Abuse Accommodation Syndrome. He 

testified that the child, whom he evaluated within a month of 

the alleged abuse, suffered from Adjustment Disorder with mixed 

disturbance of emotions and conduct and concluded her 

"statements and presentation are consistent with a child who has 

experienced sexual abuse." We reverse and remand for the judge 

to consider the testimony offered by the Division's expert. We 

hold the psychological opinion evidence offered here is 

admissible to corroborate the child's allegation of abuse 

subject, of course, to whatever weight the judge deems 

appropriate to accord the testimony.

In rendering his opinion from the bench, the trial judge 

stated: "if this is not the hardest case that I have had to 

decide, it is the closest that I have ever had to come." 

Because we are remanding for further consideration of the 

evidence, we only briefly describe the allegations and the 

thrust of the father's defense.
4 A-2114-12T2

The Division claimed that defendant father I.B. committed 

an act of sexual abuse against his five-year-old daughter, Rose,

2

by calling her into the bathroom at their home and telling her 

to touch his penis. Some days later, Rose spontaneously 

revealed this incident to her mother, A.E.,

3 a medical doctor who 

had trained as a gynecologist in the family's native Sudan. 

Rose's mother initially discounted the allegation. She assumed 

the child may have accidently seen her father naked and been 

naturally curious, given her age, prompting the child's 

conversation with her. When she asked Rose about it sometime 

later, however, the child got upset and said she didn't want to 

talk about it because it made her stomach hurt. After several 

more such conversations in which the child shared additional 

details, including that her father had washed "the glue" from 

her hands afterward, A.E. sought a restraining order against her 

husband in which she revealed the child's allegation. Court 

personnel advised A.E. that she should report the incident to 

the Division.

We note here that both parents acknowledged marital discord 

pre-dating the allegation of sexual abuse. Defendant 

 

2 We use a fictitious name to protect the child's identity.

3 Although A.E. was named as a defendant in the action, the 

Division did not pursue a claim against her. We refer to I.B. 

as defendant in this opinion.
5 A-2114-12T2

categorically denied the child's account. He claimed his wife 

had coached their daughter to make false allegations against 

him.

Following an initial interview by a Division caseworker, 

Rose participated in a videotaped interview conducted by a 

certified forensic interviewer at Wynona's House Child Advocacy 

Center. Rose recounted the allegation to the interviewer, 

providing some specific details such as the television program 

she had been watching when her father called her into the 

bathroom as well as the particular towel he had wrapped around 

him. Using anatomically correct dolls to demonstrate what had 

occurred, the five-year old placed the female doll's hand on the 

male doll's penis and moved the hand. She reported that her 

father was silent as he "finished peeing." At the end of the 

interview, Rose spontaneously asked the interviewer whether 

"touching butts [the word she used to describe the vagina, penis 

and buttocks on anatomical drawings] is [a] good thing or not a 

good thing?" 

Following the interview, the Division filed its complaint 

and referred Rose to the Metropolitan Regional Child Abuse 

Diagnostic and Treatment Center. Staff psychologist Justin 

Misurell, Ph.D., conducted a psychosocial evaluation of the 

child based on the videotape of the forensic interview, Division 
6 A-2114-12T2

records, and a clinical interview of Rose. In that interview, 

Rose confirmed the statements she made during the forensic 

interview and "reported that she frequently experiences 

nightmares about 'bad things like getting locked in the 

bathroom.'" She also reported that her parents used to often 

argue, that she thinks frequently about those incidents, and

that they make her feel sad. 

Misurell diagnosed Rose as suffering from Adjustment 

Disorder with mixed disturbance of emotions and conduct and 

concluded her "statements and presentation are consistent with a 

child who has experienced sexual abuse." He found she "has 

exhibited trauma related symptoms" including intrusive thoughts 

about the incident, nightmares, and has engaged in active 

attempts to avoid thinking about the abuse. Misurell attributed 

Rose's symptoms to "her sexual abuse experience and exposure to 

marital discord."

After hearing Misurell's testimony pursuant to N.J.R.E.

104, the judge determined to strike his opinion, ruling that the 

expert would not be permitted to "express opinions as to the 

psychological condition of the child for the purposes of showing 

that the sexual assault has, in fact, occurred." Based on the 

Court's opinion in J.Q. and our opinions in State v. Scherzer, 

301 N.J. Super. 363 (App. Div.), certif. denied, 151 N.J. 466 
7 A-2114-12T2

(1997) and N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 

N.J. Super. 427 (App. Div. 2002), the court determined it could 

not consider Misurell's opinion as "substantive evidence that 

the child was abused." The judge did, however, admit the 

statements the child made to Misurell during the evaluation, 

including her report of nightmares.

Although finding the case an extraordinarily close one, the 

judge ultimately determined the Division lacked any 

corroboration for the child's report of sexual abuse. The judge 

specifically rejected defendant's claims that A.E. had coached 

Rose into lying about the incident, stating that "after 

observing [A.E.] throughout the course of the trial and hearing 

her testimony, it is apparent that these assertions are without 

merit." Notwithstanding, the court noted inconsistencies in 

A.E.'s testimony regarding the timeline of events and found 

"there was really no development during the course of this case 

of any sort of corroboration as to the date, time, and place 

that the child says that I was in the bathroom with my father."4 

The judge further found no physical evidence or precocious 

 

4 There was no dispute that during the timeframe in question, 

Rose was in her father's sole care for at least two nights a 

week while her mother attended graduate school classes. Rose, 

however, initially reported that her mother was in the living 

room when the assault allegedly occurred. She later said her 

mother was at school and still later that she was in the 

kitchen.
8 A-2114-12T2

sexual knowledge. Although acknowledging the child's report of 

nightmares, the judge found they did "not appear . . . to be 

necessarily connected because the child was experiencing turmoil 

within the family between the father and the mother." 

Actions filed by the Division alleging abuse and neglect of 

children are governed by statute. N.J.S.A. 9:6-8.21 to -8.73. 

An abused or neglected child is defined, among other ways, as 

one under the age of eighteen whose parent "commits or allows to 

be committed an act of sexual abuse against the child."

N.J.S.A. 9:6-8.21c(3). The Division "must prove that the child 

is 'abused or neglected' by a preponderance of the evidence, and 

only through the admission of 'competent, material and relevant 

evidence.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 

N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46b). The statute 

provides that "previous statements made by the child relating to 

any allegations of abuse or neglect shall be admissible in 

evidence; provided, however, that no such statement, if 

uncorroborated, shall be sufficient to make a fact finding of 

abuse or neglect." N.J.S.A. 9:6-8.46a(4).

Although the most effective types of corroborative evidence 

would obviously be eyewitness testimony, an admission by the 

accused, or medical or scientific testimony documenting abuse, 

we have acknowledged that such evidence in sexual abuse cases is 
9 A-2114-12T2

rare. Z.P.R., supra, 351 N.J. Super. at 436. In Z.P.R. we 

followed the reasoning of other courts holding that the 

corroboration requirement must reasonably be construed to also 

include indirect evidence of abuse, including, for example, "a 

child victim's precocious knowledge of sexual activity, a semen 

stain on a child's blanket, a child's nightmares and 

psychological evidence." Ibid. (quoting State v. Swan, 790 P.2d 

610, 615-16 (Wash. 1990), cert. denied, 498 U.S. 1046, 111 S. 

Ct. 752, 112 L. Ed. 2d 772 (1991)). We held the "corroborative 

evidence need not relate directly to the alleged abuser, it need 

only provide support for the out-of-court statements." Ibid. 

Here, the trial judge struck psychological evidence of 

emotional effects that are routinely admitted in Title Nine 

cases.5 Such evidence is admitted because judges find it will 

assist them "to understand the evidence or to determine a fact 

in issue." N.J.R.E. 702; Z.P.R., supra, 351 N.J. Super. at 439. 

It appears that the trial judge, who conscientiously struggled 

with the issue of corroboration in this case, disallowed the 

expert's opinion, not because he thought the testimony would not 

be helpful in understanding the child's symptoms, but because he 

 

5 Indeed, the judge acknowledged admitting such testimony in 

other cases, at least one of which was affirmed by this court. 
10 A-2114-12T2

thought the evidence barred by precedent. We do not agree that 

the case law would bar the expert's opinion here.

The Supreme Court in J.Q. barred the use of Child Sexual 

Abuse Accommodation Syndrome to establish guilt because the 

syndrome was never intended as a diagnostic device and does not 

detect sexual abuse. 130 N.J. at 578-79. Instead, it assumes 

the presence of abuse and explains the child's reactions to it. 

Id. at 579. The syndrome was only ever intended to help explain 

why many sexually abused children delay reporting their abuse or 

recant their allegations. Ibid. Because it is not probative of 

sexual abuse, the Court limited its use in accordance with its 

intended purpose, that is as rehabilitative evidence to help 

"dispel preconceived, but not necessarily valid, conceptions 

jurors may have concerning the likelihood of the child's 

truthfulness as a result of her delay in having disclosed the 

abuse or sought help." State v. W.B., 205 N.J. 588, 610 (2011) 

(quoting State v. P.H., 178 N.J. 378, 395 (2004)). 

Because the Court in J.Q., 130 N.J. at 580, analogized its 

ruling on the admissibility of Child Sexual Abuse Accommodation 

Syndrome to the approach adopted in other jurisdictions to

evidence of Rape Trauma Syndrome, a syndrome that purports "to 

dispel such common myths as that victims immediately report a 

rape or that all victims display an emotional demeanor after an 
11 A-2114-12T2

attack," we held in Scherzer, supra, 301 N.J. Super. at 399, 

409, that it was similarly error for a court to allow an expert 

to testify in a criminal case that the victim suffered from Rape 

Trauma Syndrome.

Neither Child Sexual Abuse Accommodation Syndrome nor Rape 

Trauma Syndrome played any part in this case. Misurell 

diagnosed Rose with Adjustment Disorder with mixed disturbance 

of emotions and conduct. He explained the reason he diagnosed

Adjustment Disorder and not Post-Traumatic Stress Disorder 

(PTSD) was because he evaluated Rose within a month of her 

allegation of abuse, thus her symptoms had not persisted long 

enough to qualify her as suffering from PTSD. The trial judge 

deemed the diagnosis significant because he read Scherzer to 

include PTSD with Rape Trauma Syndrome as not probative of 

sexual abuse. 

The reference to PTSD in Scherzer is a fleeting one. The 

objected-to testimony in that case involved Rape Trauma 

Syndrome, not PTSD. The court reported that one of the experts 

for the State acknowledged on cross-examination that Rape Trauma 

Syndrome "would fall under the category of post-traumatic stress 

disorder in the DSM III"

6 (Diagnostic and Statistical Manual of 

 

6 This does not appear to have been factually accurate. Although 

PTSD was included in the DSM III, Rape Trauma Syndrome was not. 

(continued)
12 A-2114-12T2

Mental Disorders III), a condition that another of the State's 

experts did not find in the victim. Scherzer, supra, 301 N.J. 

Super. at 400. The error we identified in Scherzer was that the 

trial judge allowed the expert to testify that the victim 

"exhibited the rape trauma syndrome"; our holding did not 

address PTSD. Id. at 409.

More directly on point than Scherzer for this discussion is 

State v. Hines, 303 N.J. Super. 311 (App. Div. 1997). In Hines, 

a case decided shortly after Scherzer, Judge Skillman reviewed 

the literature and surveyed the case law relating to the 

admissibility of PTSD evidence. Finding that PTSD was well 

recognized as a psychiatric disorder included in the DSM IV, and 

that courts in other jurisdictions had held it possessed 

sufficient scientific reliability to justify the admission of 

expert testimony about the condition in appropriate 

circumstances, we held it was error for the trial judge to have 

precluded defendant from presenting testimony that she suffered 

 

(continued)

American Psychiatric Association, Diagnostic and Statistical 

Manual of Mental Disorders, 236-39 (3d ed. 1980). PTSD remains 

a recognized diagnosis in the DSM V, but neither Rape Trauma 

Syndrome nor Child Sexual Abuse Accommodation Syndrome is 

included as a recognized diagnosis in the current version of the 

Manual. American Psychiatric Association, Diagnostic and 

Statistical Manual of Mental Disorders, 265-90 (5th ed. 2013). 
13 A-2114-12T2

from the condition at the time she killed her father, whom she 

alleged sexually abused her when she was a child. Id. at 313.

Specifically, applying the principles set forth in State v. 

Kelly, 97 N.J. 178 (1984), for the admission of expert 

testimony,

7 we concluded the evidence was not objectionable and 

that the expert's "proposed testimony regarding PTSD would have 

been directly relevant to the issues of the honesty and 

reasonableness of defendant's purported belief that she had to 

resort to deadly force in order to repel the victim's assault" 

and "also may have lent credibility to defendant's assertion 

that the victim sexually abused her as a child, which was 

 

7 The Court in Kelly indicated there are "three basic 

requirements for the admission of expert testimony: (1) the 

intended testimony must concern a subject matter that is beyond 

the ken of the average juror; (2) the field testified to must be 

at a state of the art such that an expert's testimony could be 

sufficiently reliable; and (3) the witness must have sufficient 

expertise to offer the intended testimony." 97 N.J. at 208. 

Applying those principles, the Court held that expert testimony 

regarding "battered woman's syndrome" was admissible to help 

establish a claim of self-defense in a homicide case. Id. at 

187. Specifically, the Court held defendant's expert "could 

state . . . that defendant had the battered-woman's syndrome, 

and could explain that syndrome in detail, relating its 

characteristics to . . . the honesty and reasonableness of 

defendant's belief" that she was in imminent danger of death or 

serious injury at the time of the killing. Id. at 207. The 

Court has since noted that "[a]lthough 'battered woman syndrome' 

is not a listed psychological 'syndrome' in the [DSM], the 

experience of being battered is mentioned as a potential 

triggering event for [PTSD]. Some have referred to it as a 

'sub-category' or 'subclass' of PTSD." State v. B.H., 183 N.J.

171, 183 (2005) (citations omitted). 
14 A-2114-12T2

relevant to the reasonableness of her belief that he intended to 

sexually assault her again." Hines, supra, 303 N.J. Super. at 

324-25. 

Accordingly, Hines stands for the proposition that PTSD 

testimony is admissible in a criminal trial and can serve to 

lend additional credibility to a defendant's allegations that 

she was sexually abused by the victim and be probative of the 

honesty and reasonableness of her belief that she had to resort 

to deadly force to prevent him from raping her again. Id. at 

326. The case provides sound precedent for the admission of 

Misurell's opinion that Rose suffered from Adjustment Disorder, 

described in the circumstances presented as a variant of PTSD, 

and that her symptoms were consistent with a child who has 

experienced sexual abuse. If accepted by the fact-finder, such 

psychological testimony could serve as indirect corroboration of 

the child's allegation of sexual abuse.8 See Z.P.R., 351 N.J. 

Super. at 436.

 

8 The trial judge relied on Judge Weissbard's statement in Z.P.R.

that evidence of Child Sexual Abuse Accommodation Syndrome had 

been held to be "admissible 'to explain secrecy, belated 

disclosure and recantation by a child sex abuse victim' but not 

'to prove that sex abuse, in fact, occurred,'" 351 N.J. Super.

at 438 (quoting State v. J.Q., 252 N.J. Super. 11, 43 (App. Div.

1991), aff'd, 130 N.J. 554 (1993)). As we have explained, the 

Court limited the use of Child Sexual Abuse Accommodation 

Syndrome in accord with its designed purpose. J.Q., supra, 130 

N.J. at 579. The Court made clear it was not "rul[ing] out the 

(continued)
15 A-2114-12T2

Hines is also instructive on another important point. In 

acknowledging that PTSD possesses sufficient scientific 

reliability to justify the admission of expert testimony about 

the condition in appropriate circumstances, we noted "that the 

admissibility of scientific evidence may turn not only on its 

reliability but the purpose for which it is offered." Hines, 

supra, 303 N.J. Super. at 318 n.1. In State v. Cavallo, 88 N.J.

508, 520 (1982), the Court noted that "[e]xpert evidence that 

poses too great a danger of prejudice in some situations, and 

for some purposes, may be admissible in other circumstances 

 

(continued)

possibility that a qualified behavioral-science expert could 

demonstrate a sufficiently reliable scientific opinion to aid a 

jury in determining the ultimate issue that the abuse had 

occurred." Id. at 565. Rather it provided guidance for the 

admission of such evidence by suggesting criteria a trial court 

may wish to consider in "evaluating the qualifications of a 

witness who seeks to offer substantive evidence of sexual 

abuse," clearly signaling its intent that the opinion not be

read to bar all use of psychological testimony as substantive 

evidence of sexual abuse. Id. at 565-66. Indeed in Hines, we 

noted the appropriate use of Child Sexual Abuse Accommodation 

Syndrome for rehabilitative purposes and PTSD testimony as 

substantive evidence in the same case. 303 N.J. Super. at 315-

18. In Z.P.R., we suggested on remand "in the interest of 

having as complete a record as possible in this difficult and 

serious matter," that the judge consider "permitting [the 

State's expert] to evaluate [the allegedly abused and neglected 

child] and, if appropriate in light of any supplemental reports 

filed thereafter, to testify concerning his findings, as well as 

about his opinions on the reliability of the in camera

interview." 351 N.J. Super. at 439-40. An evaluation of the 

child would not have been necessary if the expert would be 

confining his opinion to Child Sexual Abuse Accommodation 

Syndrome.
16 A-2114-12T2

where it will be more helpful and less prejudicial." It 

explained that "the usefulness of expert testimony depends in 

part on the context in which it is offered. Testimony may be 

more helpful than prejudicial in one context, because it is 

being used for a limited purpose or because the factfinder knows 

its limitations. Yet in different contexts the same evidence 

might be excluded as unreliable." Id. at 526 n.8. 

Our Family Part judges regularly qualify experts in 

psychology and psychiatry and hear the opinion testimony those 

experts offer in a variety of contexts. The Court has many 

times noted the special expertise of Family Part judges and the 

grave responsibilities the Legislature has reposed in them to 

ensure the safety of children in our State. See Cesare v. 

Cesare, 154 N.J. 394, 412-13 (1998). We are confident that the 

judges hearing Title Nine cases regularly assess the sort of 

testimony that was offered here and are more than capable of

evaluating the opinions of experts and understanding the 

limitations of behavioral science testimony in a way untrained 

jurors may not.

We expect the judges in these cases to rigorously evaluate 

expert testimony offered to corroborate a child's allegation of 

abuse. But so long as the proffered testimony meets the 

requirements of N.J.R.E. 702 and Kelly, as the evidence offered 
17 A-2114-12T2

here does,

9 the questions should be directed to the weight and 

not the admissibility of the testimony.10 See In re Yaccarino, 

117 N.J. 175, 195-96 (1989). 

In this case, the experienced and conscientious trial judge 

expressed appropriate concern about the expert's ability to link 

the child's symptoms, and especially her nightmares, to the 

alleged sexual abuse as opposed to the admitted marital discord 

between her parents. That is an important and legitimate area 

of inquiry, which the psychologist should have been well 

prepared to address. If the judge believed that the child 

suffered from nightmares, as she told the expert and as her 

mother testified, then their meaning and significance is a 

question the judge was required to answer in determining whether 

 

9 To the extent the trial judge rejected Misurell's testimony 

based on any lack of training on the part of the psychologist or 

the forensic interviewer, we conclude he erred. Misurell 

testified he had conducted over 200 evaluations of child victims 

of sexual abuse, received instruction on how to appropriately 

interview sexually abused children and was able to identify 

indications of "coaching." The forensic interview was conducted

by a certified forensic interviewer. Both professionals were 

qualified to undertake their respective tasks. Moreover, the 

judge specifically noted that he did not find any improprieties 

in the interviewer's questioning of the child. 

10 Evaluation of psychological or behavioral science testimony, 

of course, requires distinguishing among different syndromes and 

diagnoses and their respective scientific underpinnings. See

J.Q., supra, 130 N.J. at 566. We decline to follow our opinion 

in State v. W.L., Sr., 292 N.J. Super. 100, 113-16 (App. Div. 

1996) because we failed there to distinguish PTSD from Child 

Sexual Abuse Accommodation Syndrome. 
18 A-2114-12T2

they could serve to corroborate her allegation of sexual abuse. 

See Z.P.R., supra, 351 N.J. Super. at 436.

Misurell testified that Rose's nightmares about "bad things 

like getting locked in the bathroom" were a "trauma related

symptom" of the alleged sexual abuse. In referencing that 

testimony in his opinion from the bench, the judge said:

My experience with dreams in life is that we 

all can say, you know, what do you think 

that dream was about? You know, what [does 

it] mean? Usually it comes back to some 

traumatic incident in our life but rarely do 

we dream the incident itself. I feel like 

I'm falling down the stairs or I feel like 

I'm late for the exam when I have a brief to 

write in the Court. So these are the issues 

that have developed around these nightmares, 

the time for the nightmare and when they 

were. 

The judge ultimately concluded that the nightmares did "not 

appear . . . to be necessarily connected [to the alleged sexual 

abuse] because the child was experiencing turmoil within the 

family between the father and the mother." 

One of the criteria for diagnosing PTSD we noted in Hines

was that the traumatic event is persistently re-experienced in

recurrent distressing dreams of the event. 303 N.J. Super. at 

320 n.3. Because the judge deemed the expert's testimony 

inadmissible, he deprived himself of the expert's opinion, based 

on the expert's knowledge, education, and experience, of the 

significance of the child's nightmares and of the opportunity to 
19 A-2114-12T2

probe the expert's reasons for relating the nightmares to the 

alleged sexual abuse instead of to her parents' marital discord. 

Because we hold that the expert's opinion was admissible as 

substantive evidence to corroborate the child's allegation of 

abuse, we remand the matter to the trial judge for consideration 

of the expert's report and testimony. The judge is to weigh all 

of the evidence, including Misurell's testimony, make 

determinations as to the credibility and weight of that 

evidence, and come to a final determination as to whether the 

allegation of abuse has been proven by a preponderance of the 

evidence. Because his ruling on the admissibility of the 

expert's testimony may have resulted in the trial judge not 

probing the expert's opinion as he would otherwise, we do not 

foreclose the judge from recalling the expert to address any 

questions the judge might have regarding his testimony. The 

judge need not hear additional testimony but should, of course, 

permit further argument in light of this opinion. 

We reject defendant I.B.'s cross-appeal from the trial 

court's denial of his pre-trial motions to depose A.E., 

Misurell, the forensic interviewer and the Division caseworker.11 

The trial judge initially denied defendant's motion for this 

 

11 I.B. also sought to have a mental health professional evaluate 

Rose. He has expressly abandoned this issue on appeal.
20 A-2114-12T2

discovery without prejudice on account of his failure to file a 

brief in support of the motion. On re-presentation of the 

motion, the judge found no showing of good cause. 

Rule 5:12-3 compels the Division to provide all relevant 

reports as well as the reports of experts and all other 

documents on which it intends to rely to the court and counsel 

for all parties on the first return date of the order to show 

cause. The Division must also make its entire file available 

for inspection to the attorneys for the parties. All other 

discovery is permitted only on leave of court for good cause 

shown. 

I.B. has produced no proof that the court abused its 

discretion in denying his motion for discovery. His contention 

that inconsistencies exist in the witnesses' reports of the 

child's statements does not represent good cause for the 

discovery he requests. There is no allegation that the Division 

failed to comply with its discovery obligations and the record 

indicates that trial counsel had nearly four months to review 

the Division's evidence and prepare for the fact-finding 

hearing. He presents even less reason for his request to us to 

permit these depositions on remand, as our review of the record 
21 A-2114-12T2

reveals he has already extensively cross-examined each of these 

witnesses.12 

We deny I.B.'s motion to supplement the record with

documents memorializing the disposition of the criminal charges 

against him as irrelevant to the issues on appeal. The parties' 

remaining arguments, to the extent we have not addressed them, 

lack sufficient merit to warrant discussion in a written 

opinion. See R. 2:11-3(e)(1)(E).

Affirmed in part; reversed in part; and remanded for 

further proceedings not inconsistent with this opinion. We do 

not retain jurisdiction. 

 

12 We reject defendant's request to now retain an expert as 

grossly out of time.