NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.J.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4919-04T44919-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.J.,

Defendant-Appellant,

_____________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

B.P., MINOR.

________________________________________________________________

 

Submitted February 15, 2006 - Decided March 9, 2006

Before Judges Coburn, Collester and Lisa.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, FN-18-213-04.

Thomas A. Pavics, attorney for appellant.

Zulima V. Farber, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Elizabeth Sherwood, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for respondent minor child (Cynthia McCulloch DiLeo, Designated Counsel, on the brief).

PER CURIAM

Appellant, D.J., appeals from a Family Court factfinding order determining that he abused B.P., the daughter of appellant's paramour, N.P. Appellant presents these arguments:

POINT I

THE PROCEDURE ADOPTED BY THE TRIAL COURT FOR THE IN CAMERA INTERVIEW OF BP WAS ERRONEOUS AND FUNDAMENTALLY UNFAIR (PARTIALLY RAISED BELOW).

POINT II

THE REFERENCE TO THE CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME IN HER SUMMATION BY THE ATTORNEY FOR DYFS AND THE COURT'S RELIANCE UPON IT WAS REVERSIBLE ERROR (NOT RAISED BELOW).

We reject these arguments and affirm.

B.P. was born on July 12, 1990. Her parents were never married and she has had no contact with her biological father. Several years after B.P.'s birth, her mother, N.P., married and, in 1995, had a son. N.P. and her husband divorced in 1998. N.P. had begun a relationship with D.J. in 1997, and in 1998 D.J. moved in with N.P., B.P. and B.P.'s half-brother.

On June 15, 2004, when B.P. was nearly fourteen-years old, B.P. reported to a school counselor that appellant had been sexually abusing her since she was ten or eleven years old. She said during the first year or two the abuse consisted of kissing her on the lips and fondling her private parts, after which appellant engaged in intercourse with her about eight or ten times, and that he required her to take several pregnancy tests. She also reported other sexual activity, which we need not describe in detail.

A schoolmate of B.P.'s also made a report on that date to the school counselor along with B.P. The schoolmate had stayed overnight at B.P.'s house while her mother was away, and she described how appellant acted in a sexually inappropriate manner towards her as well as B.P.

B.P. also gave a statement describing the sexual abuse to representatives of the Division of Youth and Family Services (DYFS or Division) and of the county prosecutor's office. A criminal complaint was issued and appellant was arrested. However, after an assistant prosecutor met with B.P., the prosecutor's office concluded that B.P. did not wish to pursue the criminal charge, and the criminal complaint was administratively dismissed.

From the time she was very young, B.P. was a troubled child. She suffered from Attention Deficit Hyperactivity Disorder (ADHD), for which she was taking medication. She was reportedly diagnosed as bipolar and was prescribed Depakote and Zoloft, which she took for a time. B.P. exhibited significant behavioral problems, becoming angry and abusive towards others and throwing herself on the floor in fits of rage. She started fires. She had very few friends in school and lived a rather isolated existence. She expressed suicidal ideations from time to time.

When the abuse first began, B.P. reported it to her mother, but her mother did not believe her, contending that B.P. had been a habitual liar throughout her childhood and she had made similar allegations against other male figures with whom she was associated, which were false. DYFS received an earlier referral in 2002, based upon a report of physical abuse of B.P. by her mother and D.J. Upon investigation, the Division found no abuse substantiated and closed its file. During the course of the investigation, B.P. did not report to DYFS personnel the sexual abuse by D.J., which was ongoing at that time. According to B.P., she did not report it because, based upon her mother's reaction to her earlier report, she felt they would not believe her.

On June 25, 2004, ten days after B.P.'s initial report of the sexual abuse, the Division filed a complaint for protective services and custody. B.P. was placed with her maternal grandparents. She continues to reside with them, and at the conclusion of this proceeding, her grandparents were awarded custody of her.

The trial began on January 19, 2005, and continued on January 24, February 23, March 1, 3 and 14. On April 5, 2005, the parties presented closing arguments and the judge rendered his decision. On the first two days of trial, the Division presented the testimony of a detective from the prosecutor's office, the school counselor, and a DYFS caseworker. Through these witnesses, various taped-recorded statements, reports, and records (including the statement of B.P.'s schoolmate) were received in evidence.

During the January 24, 2005 session, in response to the judge's inquiry, the Division's attorney stated that she did not intend to call B.P. as a witness. All counsel agreed that was their understanding. The court, however, questioned the propriety of not hearing from B.P. in light of N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155 (App. Div. 2003), in which we criticized the trial judge's failure to interview the victim in a child abuse proceeding. Referring to L.A., the judge said:

[I]f we are not doing the interview and she's not going to be called, I have to make a finding that explains why, even if everybody in the courtroom says it's okay. I suppose that's a reason, because everybody agrees.

But if there's any other reason why, I mean special reasons, like she would be traumatized from this because, that's what we need to be clear on. I want to be very, very clear. If everyone is of the same mind on this issue and it is contrary to her best interest, I am certainly willing to accept the consensus that's reached. But I really needed to raise this because I don't want to find out that somebody doesn't like my decision, there's an appellate review and they say, Well, you know, Judge, you didn't even ask the question about interviewing the girl, what were you thinking?

On February 3, 2005, the Law Guardian wrote to the judge, reporting that she met with B.P. and learned that "she is quite willing to be questioned in chambers and looking forward to answering questions the lawyers have submitted." The Law Guardian further reported that she contacted B.P.'s current therapist and "[o]nce I explained how the interview of a minor takes place, the therapist, Karen Stiefel indicated that it could actually be a very good experience for [B.P.]." On February 8, 2005, counsel for B.P.'s mother, N.P., wrote to the court:

For the record, on behalf of [N.P.], we have no objection to an interview by the Court.

While it is, of course, within the Court's discretion, as I have now had an opportunity to review the therapy records of Leslie Tsukroff, I respectfully suggest that it may be beneficial for Your Honor to review such records prior to interviewing [B.P.], as they involve three years of therapy and I believe provide a great insight into this matter.

At the next trial session, on February 23, 2005, there was further discussion regarding B.P.'s anticipated testimony. At the beginning of the session, the judge discussed with counsel a case decided by this court on February 16, 2005, N.J. Div. of Youth & Fam. Servs. v. H.B., 375 N.J. Super. 148 (App. Div. 2005), in which we found reversible error for failing to interview a child in a case similar to this one. Later in the session, the judge and attorneys discussed the topic. Appellant's attorney joined the suggestion submitted by N.P.'s attorney that the judge review the Tsukroff counseling records, which had been submitted to the court earlier in the trial. All counsel were in agreement with that suggestion. Appellant's attorney and N.P.'s attorney agreed that B.P.'s testimony was necessary. N.P.'s attorney acknowledged that he had never "asked for it before," but in this case, considering that B.P. was nearly fifteen years old, he thought "she could take a witness stand before us and allow us to question her." He immediately followed that comment with this: "If that's not acceptable to your Honor, then I certainly agree with [the Division's attorney] that in chambers, questions by the attorneys to be submitted." He then inquired whether video would be available for that procedure.

Appellant's attorney agreed that the judge "has to interview [B.P.]." He also requested in-court testimony subject to cross-examination, suggesting that, perhaps only counsel would be present in the courtroom during B.P.'s testimony, and not the defendants, "in such a manner to make it as least intrusive on the witness as possible."

The Division's attorney urged the judge to interview B.P. in camera. She pointed out that prior appellate cases have sanctioned such procedures for children about the same age as B.P. and the procedure is authorized by Rule 5:12-4(b). She further expressed her view "that putting this child on the stand, . . . you're going to get a different effect than if you interview her in camera."

The judge then discussed several potential procedures. He could conduct the interview in chambers, with all counsel present, but situating the participants in a manner so the attorneys were sitting behind the witness and out of her line of sight. The witness would be facing the judge. The judge would ask his questions, then the attorneys would ask theirs, but without having eye contact with the witness. Another alternative would be for the judge and the witness to be in his chambers, with the attorneys in the courtroom. A court reporter would be present in chambers and would take down the questions and answers, transmitting them in "real time" to a monitor in the courtroom, where the attorneys could read the transcription simultaneously with the testimony. The lawyers would have the opportunity to write out questions for the judge to ask, and after the first round there would be a recess, during which the attorneys could consult with their clients and write down follow-up questions, which the judge would then ask in the same format.

Referring to those two procedures, the judge said:

So, it's not as simple as here [in the courtroom] or there [in chambers]. It's very unlikely it's going to be here, I can tell you that. I can't -- I know it's been requested, so the record is clear, it's requested, but it's unlikely to be in the courtroom. But more likely is either using Judge Ross' courtroom and having just me along with a court reporter with [B.P.], or if she can stand up to and be able to handle without harming her, questions by counsel in the way that I laid out [with counsel, but not the parties, in chambers and out of eye contact with the witness], then I think from a due process point of view, that would be better. And I would like to strike the right balance between her and not hurting her in the process and due process to accord as much involvement as is possible.

I mean, it's a delicate balance. It's one that I can't decide for sure now, but I've actually shared with you what I was going to consider during the recess and I still need time to consider, because I'm not sure if Judge Ross' courtroom is still set up that way for that to work, and that's one of the things I need to find out.

After the judge laid out these options and expressed his intention to conduct a preliminary interview with B.P. to better assess which procedure would be most appropriate, appellant's counsel set forth his position:

Your Honor, actually the way your Honor laid that out, I would have no objection to the procedure whereby we can either watch or hear the questions, and then either ourselves ask or submit further questions to the Court, which allays my fears, which is in hearing the answer and being able to get question.

So to be quite frank, if your Honor were considering that type of scenario, I would not have an objection to that as long as we were able, "we" being counsel, to view it and have some input on the spot to get some questions to your Honor, I think that would be most appropriate.

[Emphasis added.]

In light of all of the colloquy, the judge expressed a tentative preference for the "real time" option, which seemed "less intrusive and more friendly in the sense of having her be comfortable in whatever it is she's going to say." The judge then reiterated that he would interview B.P. briefly,

just getting a sense of procedures, talking to her, asking her what she thinks, if she's comfortable, and why, and then by assessing that, I mean, it's extremely subjective, but I guess that's why I have this role and this responsibility to keep an open mind even as the process, and then make the decision after I talk to her.

Towards the end of the February 23 session, the judge again addressed the topic and confirmed that counsel for both defendants agreed with the two alternative in-chambers procedures previously discussed. This was the pertinent part of the colloquy:

[THE COURT:] I really cannot envision in a non-criminal case that I'm going to have her sit in the courtroom here and testify. I cannot envision doing that, and I think I heard both, to be really clear, both counsel for the defendant say that it wasn't necessary; that it would be satisfactory to either have the chance to be in chambers with me and [B.P.], or, alternatively, the computer assisted transmission.

So, I am correct in hearing that?

[COUNSEL FOR N.P.]: Judge, just on the computer transmission, would we also have the opportunity under that scenario to ask questions also?

THE COURT: You would. I'd ask the first round of questions. You'll have all the questions, you'll tell me what you want me to ask. . . .

. . . .

[COUNSEL FOR B.P.]: Your Honor, I have no problem with that.

B.P. was scheduled to be brought to the courthouse on the afternoon of February 28 for the judge's brief preliminary interview to determine which procedure to use. B.P.'s testimony was scheduled for March 1. Unfortunately, due to a snow storm, the courthouse was closed on the afternoon of February 28. When the matter was reconvened on the morning of March 1, the judge acknowledged on the record that due to the court closure the day before he was not able to have the interview, and he "made the decision that it would be via the computer equipment." No one objected, nor did anyone request that the preliminary interview be conducted before making a final decision on the procedure. Indeed, counsel had already exchanged between themselves, some by fax the previous evening and some by hand delivery that morning, the proposed questions the judge would ask B.P. It is quite clear that all counsel expected the "real time" option to be utilized and prepared for it in advance, and it proceeded in that manner without objection from any party.

B.P.'s testimony took most of the day. After the first round of questioning, the judge gave the parties an extended recess (about two hours), during which the attorneys could confer with their clients and write out proposed follow-up questions. Those were then exchanged and discussed on the record. The judge made rulings regarding relevancy and the form of questions, and no exception was taken to questions that were posed to B.P. in the second round. After a shorter recess, a similar procedure was followed for a brief third round of questioning, which was again accomplished without objection or exception.

Just before the second round of questioning began, appellant's attorney commented, "Your Honor, I'm fine with the way we're proceeding." And, after the second round, appellant's counsel said, "This system isn't bad, your Honor, except that it's quick. From this side when the questions are being asked and typed, its going lickity split sometimes." Thus, there was some difficulty in taking notes, but counsel did not ask the judge to slow the process down to facilitate note-taking or otherwise object to the manner in which the questioning was proceeding. The judge then said he considered authorizing the clerk to "put the voice up" so the attorneys could hear the testimony as well as reading its transcription on a monitor, but he "felt that was too intrusive -- so that was a judgment call on my part." Appellant's attorney responded:

I actually don't mind the approach -- and, again, I honestly -- this is fine, how we've done it for today, but I think it would actually be better with hearing at the same time for those reasons, especially, too, sometimes with the typing, it doesn't transcribe as quick. So you're passed and it's leaving a word out or a sentence out, and it's already to the next question.

So I guess if we heard it at the same time, it might be a little easier to digest.

The judge then expressed the view that if he allowed the audio, he might, in some future case, consider allowing video, questioning whether video would be "more intrusive or less intrusive than having the court reporter sitting there . . . ."

We have carefully reviewed the transcript of B.P.'s testimony. The judge posed the questions in a neutral manner. He asked all questions proposed by counsel, subject to his relevancy rulings, to which no exception was taken. He asked appropriate follow-up questions in a fair and balanced manner.

The judge found B.P.'s testimony credible and persuasive. He also found substantial corroboration of her allegations in other evidence that was presented. N.P. testified. Appellant did not. Based upon all of the evidence, the judge made factual findings and concluded, by a preponderance of the evidence, that appellant sexually abused B.P.

Appellant now argues that the procedure utilized for taking B.P.'s testimony was fundamentally unfair because the testimony was taken out of the presence of the other parties and their attorneys, and that the judge settled upon the procedure without conducting a preliminary interview of B.P. and without any evidence that testifying in open court would be traumatic or harmful to B.P.

Because appellant did not object to the procedure, we review the argument under the plain error standard, and we will not reverse unless there was an error that was "clearly capable of producing an unjust result." R. 2:10-2. Indeed, because appellant affirmatively consented to the procedure to which he now objects, the doctrine of invited error renders the likelihood of reversal even less likely. "Trial errors which were induced, encouraged or acquiesced in or consented to by . . . counsel ordinarily are not a basis for reversal on appeal." Harris v. Peridot Chem. (N.J.), Inc., 313 N.J. Super. 257, 296 (App. Div. 1998) (quoting State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974)).

In a DYFS proceeding, "[t]he testimony of a child may, in the court's discretion, be taken privately in chambers or under such protective orders as the court may provide." R. 5:12-4(b); see also R. 5:3-2(a) (containing a similar provision for Family Part actions generally, "[i]n the child's best interest").

We have previously sanctioned a procedure similar to that followed here involving a twelve-year-old child, in which the judge conducted the in camera interview outside the presence of defendant and her attorney, and the audio of the interview was contemporaneously provided to defendant and her attorney in the nearby courtroom. N.J. Div. of Youth & Family Servs. v. S.S., 185 N.J. Super. 3, 6-7 (App. Div.), certif. denied, 91 N.J. 572 (1982). There, like here, the law guardian was present in chambers during the interview and defendant's attorney was permitted to submit additional questions to be asked by the judge. Id. at 6. Our rationale for approving the procedure was this:

We are satisfied that under the circumstances the procedure utilized was in the best interests of the child. It is evident from the record that the child was emotionally disturbed. The trial judge described him as "rigid." We conclude that the judge reasonably found that a certain degree of privacy would be more likely to elicit a genuine and reliable response from the child. We are satisfied that the trial judge acted reasonably in balancing the needs of the child for protection as against defendant's need to see her child when that child answered the judge's questions or answered questions submitted by the attorneys for cross-examination.

 
In a custody proceeding the judge has broad discretion to conduct a private examination of a child. Callen v. Gill, 7 N.J. 312, 319 (1951). Indeed, in a criminal case utilization of a procedure where a witness is present through electronic means such as closed circuit television rather than being physically present in court has been held not to violate the right of confrontation. See, e.g., Kansas City v. McCoy, 525 S.W.2d 336, 339 (Mo.Sup.Ct.1975). The use of the tape recorder and voice transmission under these circumstances is an acceptable method of balancing the interests of the child and the rights of the parties while at the same time affording the trier of fact maximum opportunity to ascertain the truth by questioning the child and observing his demeanor.

[Id. at 7.]

 
In more recent decisions, we have further adverted to the propriety of in camera interviews of thirteen-year-old children in child abuse cases. N.J. Div. of Youth & Fam. Servs. v. H.B., supra, 375 N.J. Super. 148; N.J. Div. of Youth & Fam. Servs. v. L.A., supra, 357 N.J. Super. 155.

The procedure utilized in this case was substantially similar to that used in S.S. The only difference was, instead of contemporaneous audio transmission, real time written transcription was provided. Audio is probably preferable, although it, too, has shortcomings if the speaker's voice drops off either because of speaking softly or not speaking directly into the microphone. Under the stenographic procedure, the stenographer would ask the speaker to repeat anything that he or she did not hear, so nothing is missed. Nevertheless, we do not view the difference as substantial.

However, in S.S. we noted that the trial judge made a finding that an in camera proceeding was appropriate, based in part upon the judge's description of the child as "rigid." We also noted that it was evident from the record that the child was emotionally disturbed.

In the case before us, the judge did not express a finding as to the appropriateness of the procedure he chose. The anticipated preliminary interview was aborted. The various options that were considered over several days between the court and counsel were winnowed down to the two in camera options. Although both defense counsel initially suggested in-court testimony, they both readily acquiesced in the alternatives as outlined by the judge, and all further discussions proceeded along those lines. It was evident to all counsel that the substantial documentary evidence in the case would be useful for the judge's review because it provided much information about B.P.'s counseling and her associated emotional and psychological problems. By the time B.P. testified, DYFS had already put in the bulk of its case, including its three witnesses to whom B.P. had reported the abuse.

Thus, the judge had before him an abundance of competent evidential materials that made it quite clear that B.P. was emotionally disturbed. Her allegations against appellant were of a very substantial nature and of very long standing. She had expressed her anger against him and his admonitions to her that she would suffer dire consequences if she told of the abuse. B.P.'s mother was also a defendant in this case, accused of neglect for not believing B.P. when she first reported the abuse and for not protecting B.P. from appellant over the ensuing years. B.P. and her mother were extremely antagonistic towards each other and had been throughout most of B.P.'s life.

On this record, it is fair to say that in-court testimony would have presented a hostile environment that would have had the clear capacity to be harmful to B.P. and to inhibit her ability to testify openly. We infer from this record that the judge recognized this and it was the basis for ruling out in-court testimony and choosing this alternative, which was agreed upon by all counsel.

The judge should have conducted the preliminary interview and should have expressed the findings supporting his decision to proceed in this manner. However, appellant has pointed us to nothing he would have done differently had a different procedure been followed, no question he would have asked that the judge did not ask, or how he was prejudiced by the procedure. We reject the contention that the Law Guardian had some advantage. The judge expressly ordered that she would not be permitted to ask questions directly of B.P. Her presence in the room was merely to provide comfort for B.P., but she was not permitted to speak. She, like all other counsel, was required to write out her questions, exchange them with the other parties, have them ruled upon by the judge, and ultimately posed to B.P. by the judge. The fact that the Law Guardian was able to observe B.P.'s demeanor when other counsel were not is of no consequence. It was the observations of the judge, the trier of fact, of B.P.'s demeanor that was critical to the judge's credibility determination.

Any error in not making findings did not have the clear capacity to produce an unjust result, and does not warrant reversal.

We find unpersuasive appellant's reliance on N.J.S.A. 2A:61B-1e and N.J.S.A. 2A:84A-32.4a. These provisions pertain to civil actions for damages and criminal prosecutions, respectively. We agree with appellant that the provisions in these statutes provide a good source of guidance in other proceedings, including child abuse and neglect cases, but they are not binding. But see In re Tenure Hearing of Wolf, 231 N.J. Super. 365 (App. Div.), certif. denied, 117 N.J. 138 (1989).

We are satisfied that, considering all of the circumstances, including the consent of all parties, the judge did not mistakenly exercise his discretion in choosing the procedure for B.P.'s testimony, that he conducted the procedure in a fair and equitable manner, and the utilization of the procedure did not result in prejudice to appellant.

Appellant's remaining argument, that the summation reference by the Division's attorney to the phenomenon of Child Sexual Abuse Accommodation Syndrome and the court's reliance upon it was reversible error, lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). There was no objection to counsel's comment, and there is no indication that the judge relied upon it.

 
Affirmed.

The judge found that neglect was not proven against N.P.

(continued)

(continued)

21

A-4919-04T4

RECORD IMPOUNDED

March 9, 2006