DIVISION OF YOUTH AND FAMILY SERVICES v. J.A.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3052-05T43052-05T4

A-3205-05T4

DIVISION OF YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.A.,

Defendant-Appellant,

IN THE MATTER OF B.C., K.M., C.C. and J.A.

______________________________________

DIVISION OF YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

T.C.,

Defendant-Appellant,

IN THE MATTER OF B.C., K.M., C.C. and J.A.

______________________________________

 

Submitted October 12, 2006 - Decided October 24, 2006

Before Judges Wefing and Yannotti.

On appeal from Superior Court of New

Jersey, Chancery Division - Family Part,

Cumberland County, No. FN-06-166-04.

Yvonne Smith Segars, Public Defender,

attorney for appellant J.A. (William J.

Sweeney, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender,

attorney for appellant T.C. (Alison

Perrone, Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney

for respondent (Michael J. Haas, Assistant

Attorney General, of counsel; Eva A. Pagano,

Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian, attorney for minor child-respondents

J.A.(2), C.C. (C.A.), and R.C. (R.A.) (Olivia

Belfatto Crisp, Assistant Deputy Public Defender,

of counsel and on the brief).

PER CURIAM

On June 11, 2004, the New Jersey Division of Youth and Family Services (DYFS) filed a complaint against T.C. and J.A. seeking the care and custody of four minor girls, B.C. ("Beth"), K.M. ("Karen"), C.C. ("Carol") and J.A.(2) ("Joan"), who DYFS alleged were abused and neglected under N.J.S.A. 9:6-8.21, N.J.S.A. 30:4C-ll, and N.J.S.A. 30:4C-12. That litigation concluded with an order entered on January 13, 2006. Following entry of that final order, J.A. and T.C. appealed separately from a fact-finding order entered on September 30, 2004; their appeals were later consolidated. After reviewing the record in light of the contentions advanced on appeal, we affirm.

T.C. is the mother of all four girls, and J.A. is the father of the youngest child, Joan. At the time DYFS filed its complaint, the oldest of the four, Karen, was eleven years old and Joan was two and one-half years old. T.C. had another daughter, "Barbara" who was thirteen years old and lived with her maternal grandparents. The four girls who were the subject of this complaint lived with T.C. and J.A.

On May 18, 2004, Karen told her mother, T.C., that J.A. had acted inappropriately toward her, putting his hands down her pants and French-kissing her. Barbara had earlier told her mother the same thing about J.A., but T.C. had not acted because she doubted Barbara's credibility. On hearing Karen's report, however, T.C. took her to the police station. The police interviewed Karen and notified DYFS. The DYFS worker who responded did a preliminary assessment and determined it would not be safe for J.A. and the four girls to remain in the same residence. She gave T.C. the choice to have J.A. leave the premises or have the girls go to their grandparents; T.C. chose the latter course.

The following day, the police and the DYFS caseworker conducted a joint investigation. They interviewed Karen and Barbara separately,and each recounted instances in which J.A. had inappropriately kissed and touched them.

DYFS referred the two girls to the University of Medicine and Dentistry of New Jersey (UMDNJ),and they were both seen by Dr. Martin A. Finkel, Medical Director of the Center for Children's Support. Dr. Finkel interviewed both girls separately. During the course of those two interviews, each recounted more instances of sexual abuse at the hands of J.A. than they had initially related to DYFS and the police. Both girls said they had witnessed J.A.'s behavior with the other. Additionally, as DYFS continued its investigation, the girls told the caseworker that T.C. permitted a friend who was a sex offender to visit at the house; they said she had even permitted him to babysit for the girls and that during those times he used the computer inappropriately. T.C. admitted she knew of this individual's past, knew of his inappropriate conduct with the computer and even admitted that she had saved some of his e-mails in case she should find it necessary to use them at some point against him.

The hearing with regard to the allegations of abuse and neglect occurred on September 21, 2004. Only two witnesses testified -- the DYFS worker who responded to the initial call from the police and the DYFS worker who thereafter took over responsibility for the investigation. DYFS records were received into evidence, as were the reports of Dr. Finkel. After considering the argument of counsel and reviewing those records, the trial court concluded in an oral opinion that DYFS had established by a preponderance of the credible evidence that J.A. and T.C. had abused and neglected Karen and Barbara.

On appeal, both J.A. and T.C. make essentially the same contention, that the evidence presented does not support the court's findings. Both stress N.J.S.A. 9:6-8.46(a)(4), which provides that while previous statements of a child alleging abuse or neglect may be admissible, "no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." T.C. and J.A. argue that there is no corroboration for the statements of Karen and Barbara, and thus the trial court's fact finding is legally unsupported.

We disagree. While there may be no physical corroboration of the girls' statements, that does not mean that the statements themselves are uncorroborated. Neither T.C. nor J.A. have pointed to any authority for the proposition that consistency between the statements of these two girls cannot be considered corroboration for purposes of N.J.S.A. 9:6-8.46(a)(4). As we noted in DYFS v. Z.P.R., 351 N.J. Super. 427, 435-36 (App. Div. 2002), corroboration can come in different forms. We recognize, as did the trial court, that the girls' statements to Dr. Finkel are significantly broader than their initial statements. We concur with the trial court that such variances are not conclusive.

A careful examination of the girls' initial statements to DYFS and the police reveals substantial agreement as to what the girls alleged had occurred. Both independently said they had witnessed J.A.'s conduct toward the other. Counsel argued to the trial court that the girls' lack of precision in providing dates and locations justified a conclusion that their statements lacked credibility. We disagree. The girls were not pressed at that early juncture to provide such details, and we have no basis to conclude that the girls would have spontaneously provided such details on their own.

We note, moreover, that there is an independent basis to sustain the finding of abuse and neglect with respect to T.C. Her admitted actions in leaving her daughters alone with a known sex offender posed a clear risk to those children. T.C.'s actions in saving certain of that individual's e-mails clearly indicated her awareness of his proclivities. Her conduct clearly exposed her children to a substantial risk of harm. N.J.S.A. 9:6-8.21(c).

 
The order under review is affirmed.

Although the trial court's January 13, 2006, order and J.A.'s Notice of Appeal lists the children as C.A. and R.A., all other documents, including the complaint, refer to them as C.C. and B.C. (or R.C.).

We have used fictitious names for the girls in this opinion to protect their privacy.

(continued)

(continued)

6

A-3052-05T4

RECORD IMPOUNDED

October 24, 2006