NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. T.K.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3953-04T43953-04T4

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

T.K.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF K.K. AND T.K.,

Minors.

________________________________________________________________

 

Submitted September 14, 2005 - Decided

Before Judges Parker and Grall.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Cape May County,

FN-05-23-05.

Cooper Levenson April Niedelman & Wagenheim,

attorneys for appellant (James B. Arsenault, Jr.,

on the brief).

Peter C. Harvey, Attorney General of New Jersey,

attorney for respondent (Michael J. Haas,

Assistant Attorney General, of counsel; Serena C.

Robinson, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian

for minors (Aleli M. Clemente, Assistant Deputy

Public Defender, of counsel and on the brief).

PER CURIAM

Defendant T.K. appeals from a judgment of abuse and neglect entered on February 23, 2005. Judge Kryan Connor rendered a written decision setting forth his finding of facts and conclusion that defendant had sexually abused K.K., his nine-year-old daughter. The judge found that while there was no direct evidence to corroborate the child's out-of-court statements describing defendant's sexual abuse, there was "an abundance of indirect corroboration of the sort countenanced by Z.P.R." N.J. Div. of Youth and Family Servs. v. Z.P.R., 351 N.J. Super. 427 (App. Div. 2002).

T.K. was divorced from R.K. on May 23, 2002. The couple had a daughter, K.K., age nine, and a son, T.K., Jr., age six at the time of these allegations. Defendant had regular visitation every other weekend with the children at his home and was anticipating a two-week visit in August 2002, when R.K. reported to the Division of Youth and Family Services (DYFS) on August 13, 2004, that the child had been sexually abused by her father during recent visits. DYFS referred the matter to the Cape May Prosecutor's Office. When the child was interviewed by an investigator in the Prosecutor's Office, she described a number of incidents of inappropriate sexual conduct by her father. The child also reported the incidents to her pediatrician. The mother reported to DYFS that after weekends with his father, the younger child, T.K., Jr., had "been acting bizarre," standing outside the bathroom while his sister was dressing, pulling down his pants and exposing himself.

Ultimately, T.K. was charged criminally and on June 13, 2005 pled guilty to second degree endangering the welfare of a child. He was sentenced as a third degree offender to a term of four years, compliance with Megan's Law for life, intensive supervision, Avenel evaluations and no contact with the child or her family.

In this appeal, T.K. argues that (1) the trial court erred in finding that the child's allegations were corroborated as required by N.J.S.A. 9:6-8.46(a)(4) and in concluding that DYFS had satisfied its burden of proof; and (2) the incidents cited by the trial judge as providing indirect corroboration of the child's allegations were insufficient to support the judgment of abuse and neglect.

We have carefully considered the record before us, and we are satisfied that defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons set forth in Judge Connor's written decision rendered on February 23, 2005. Nevertheless, we add the following comments.

In Z.P.R., we held that neither N.J.S.A. 9:6-8.46(a)(4), nor the case law require direct evidence to corroborate the child's out-of-court statements regarding sexual abuse. Z.P.R., supra, 351 N.J. Super. at 435-36. We noted there that "[i]t would be a rare case where evidence could be produced that would directly corroborate the specific allegation of abuse between the child and the perpetrator." Id. at 435. We indicated, however, that a variety of evidence is acceptable to corroborate a child's out-of-court statements, including "precocious sexual knowledge," and "abnormal and sexualized behavior." Id. at 436 (citing State v. Swan, 790 P.2d 610, 620-21 (Wash. 1990), cert. denied, 498 U.S. 1046, 111 S. Ct. 752, 112 L. Ed. 2d 772 (1991)). We further held in Z.P.R. that "[t]he corroborative evidence need not relate directly to the alleged abuser, it need only provide support for the out-of-court statements." Id. at 436.

Here, the trial judge listed six specific items of evidence that indirectly corroborate the child's statement:

(1) Although there is not necessarily an advanced knowledge of sexual practices implicit in [K.K.'s] report, there is an extraordinary amount of detail as to how she and her father sexually interacted - detail which in itself lends credibility to her account and which, in its sadly innocent way, strikes the reader as reflective of what a patient predator might just do to introduce a child to gradually deepening levels of sexual intimacy.

(2) [R.K.] confirms that [K.K.] and [T.K., Jr.] had visited [T.K.] on the weekend when [K.K.] says the most recent abuse occurred.

(3) The imminency of the two week summer visit - which would obviously include 14 or so successive "overnights" with [T.K.] - and which [K.K.] herself cited as a reason for raising this problem with her mother on August 11th - is confirmed as having been scheduled to begin just 5 days after August 11th.

(4) [R.K.] remembers a Saturday night in July 2004 when [K.K.] unexpectedly telephoned and insisted that she be picked up, ostensibly so that [R.K.] could "braid [K.K.'s] hair". This was quite out of character and contrary to the willing spirit with which both children seemed to approach their visits with their father. When [K.K.] relates in August 2004 that her father's predations began during a July visit, her mysterious insistence on truncating an overnight visit just to get her hair braided takes on a retrospectively ominous tone.

(5) [T.K., Jr.'s] "bizarre" behavior (standing outside the bathroom where [K.K.] was dressing and pulling his pants down) is behavior that his mother says she had never seen this six year-old boy exhibit before. This behavior occurred "a few days" before [R.K.'s] August 19, 2004 conversation with the case worker - certainly during the period of time when [T.K., Jr.] could be said to have been affected by the intensifying sexualized atmosphere of overnight visits at [T.K.'s] house.

(6) Lastly, there is the absence of antipathy and acrimony . . . [between the parents regarding visitation]. The fact that [K.K.] likes going to her father's house - and the fact that she says she has fun there - does not undermine the trustworthiness of her allegations. In its sweet way, it enhances them. She wants to keep going over. [K.K.] just wants her dad "to stop making her sit on his lap," because what he was doing to her was making her "worried."

We are satisfied that the evidence cited by Judge Connor does, indeed, indirectly corroborate the child's statement and satisfies the Z.P.R. standard.

 
Affirmed.

Although the law guardian has indicated in her brief that defendant admitted that he engaged in inappropriate sexual contact with the child in giving a factual basis for his plea, we have not been provided with a transcript of the plea hearing.

(continued)

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2

A-3953-04T4

RECORD IMPOUNDED

September 29, 2005