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

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4642-07T44642-07T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent/

Cross-Appellant,

v.

D.D.,

Defendant-Appellant/

Cross-Respondent.

IN THE MATTER OF

T.S., K.D. and M.D.,

Minors.

_________________________________

 

Submitted May 6, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FN-10-26-05.

Wronko & Loewen attorneys for appellant/ cross-respondent (Gilbert G. Miller, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent/cross-appellant, New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Peter Alvino, Senior Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors T.S., K.D. and M.D. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

This matter returns for review following our remand. Defendant D.D. appeals from a Family Part order entered on April 17, 2008, entered after a fact-finding hearing. The trial judge determined D.D. "committed a sexual abuse act upon" his step-daughter, T.S., and "pose[d] a risk of sexual harm" to his natural daughters, M.D. and K.D. As a result, the court ordered D.D. to have no contact with T.S. and continued the previously ordered custody and visitation provisions that required the children to remain with R.C., D.D.'s former wife and the children's mother. Plaintiff, the New Jersey Division of Youth and Family Services (DYFS or the Division), was ordered to provide care and supervision of the children and to supervise D.D.'s visitation with his two daughters.

D.D. specifically argues:

POINT I

D.D. WAS DENIED HIS DUE PROCESS RIGHT TO CONFRONT T.S. AND W.K. AT TRIAL.

POINT II

DYFS FAILED TO ESTABLISH THAT D.D. PLACED M.D. AND K.D. AT RISK OF HARM WHICH RENDERED EACH AN "ABUSED AND NEGLECTED CHILD" AS THAT TERM IS DEFINED IN N.J.S.A. 9:6-8.21(C).

POINT III

EVIDENCE THAT D.D. DOWNLOADED PORNOGRAPHY ON HIS WORK COMPUTER WAS INADMISSIBLE; THE COURT ERRED IN CONSIDERING IT FOR SOME USES.

POINT IV

THE COURT ERRONEOUSLY ADMITTED EVIDENCE THAT D.D. EXPOSED HIMSELF TO W.K.

POINT V

THE TRIAL COURT'S FINDING THAT T.S. WAS ABUSED WAS UNSUPPORTED BY COMPETENT, SUBSTANTIAL AND CREDIBLE EVIDENCE.

POINT VI

THE TRIAL COURT DID NOT ADDRESS[] D.D.'S POLYGRAPH CONTENTIONS PROPERLY.

POINT VII

THE MATTER MUST BE REMANDED TO A JUDGE IN A DIFFERENT COUNTY.

DYFS filed a cross-appeal challenging evidential rulings made by the trial court. The Division contends the trial court mistakenly ruled its evidence of D.D.'s actions to obtain and actually possess sexually explicit photographs of children was irrelevant to the issue of whether D.D. had improper sexual contact with his stepdaughter. DYFS also challenges the trial court's ruling regarding D.D.'s exposure of his genital area to the underage neighbor, W.K., arguing that act alone constitutes child abuse.

We have considered the arguments raised on appeal challenging the order entered. Based upon the record and applicable legal standards, we affirm.

I.

D.D. and R.C. were married in 1998 and have two daughters, K.D. and M.D, born October 1, 2000 and December 7, 2001. Also living with the couple was T.S., R.C.'s daughter born on August 5, 1991, during a prior marital relationship. On January 20, 2005, D.D. and R.C. were divorced in Minnesota where they then resided. The Marital Termination Agreement incorporated into the divorce judgment granted R.C. and D.D. equal parenting time in six-month intervals with M.D. and K.D., and allowed R.C. and the children to return to New Jersey. R.C. moved back to New Jersey in December 2004.

On January 20, 2005, DYFS received a referral from therapist Pauline Dessertine, R.N., M.S.N., Ed. S., of Kurtis Counseling Center. Dessertine informed the Division her client, T.S., disclosed she had experienced sexual abuse by her stepfather, D.D. The incident occurred on August 23, 2001, when T.S. was age ten. Succinctly, the child stated she fell asleep in a sleeping bag in the basement and was awakened by D.D., who rubbed his penis on her face while an adult movie played on the television. The child immediately reported the incident to her mother. R.C. confronted D.D., who asked, "What did she say?" He then denied the incident. R.C. found no "evidence" of the encounter described by T.S. After she and D.D. spoke to T.S., she accepted D.D.'s assurances that nothing happened. At that time, R.C. did not report the incident or take T.S. for treatment.

In February 2004, Dessertine was providing marital therapy to R.C. and D.D. Part of the discord resulted from the fact that D.D. was terminated from his position as a project manager for Roche Molecular Diagnostics because he downloaded twenty-two gigabytes of pornographic material contained in over 474,000 files, which he stored on his work computer despite prior warnings not to do so. In March 2004, T.S. began counseling with Dessertine in preparation for the family's move to Minnesota, where D.D. had secured new employment. After the move, Dessertine continued the marital therapy, as well as T.S.'s counseling sessions telephonically. Despite the counseling efforts, the parties' marriage deteriorated and D.D. filed for divorce in Minnesota in October 2004. In November 2004, T.S., who was unhappy living in Minnesota, returned to New Jersey to live with her father. When R.C. and the younger children returned to New Jersey, she and T.S. resumed face-to-face counseling sessions with Dessertine. It was during a January 18, 2005 session that T.S. made her disclosure about the sexual abuse.

On February 15, 2005, DYFS filed a complaint and order to show cause against D.D. and R.C. pursuant to N.J.S.A. 9:6-8.21, N.J.S.A. 30:4C-12, and Rule 5:12-1. After trial, the court entered its finding that D.D. committed an act of abuse and neglect by engaging in "inappropriate sexual contact on August 23, 2001." The dispositional order entered that same date restrained D.D. from all contact with T.S., placed the minor children, M.D. and K.D., in R.C.'s custody and limited D.D.'s contact with his daughters to supervised visitation. At the time the order was entered, D.D. continued to reside in Minnesota.

D.D. appealed the provisions of the order that affected his parenting time with his daughters. We reversed the order after reviewing D.D.'s jurisdictional challenge. New Jersey Div. of Youth and Family Servs. v. D.D. (D.D. I), No. A-1165-05T4 (App. Div. July 14, 2006) (slip op. at 33-34). In our opinion, we discussed certain challenges raised by D.D., including: it was improper to limit T.S.'s testimony to an in camera interview in the presence of the judge and guardian ad litem even though counsel for the parties listened simultaneously; the trial judge erred in admitting evidence of pornographic downloads made by D.D. onto his work computer; and the court should have admitted D.D.'s polygraph results. It aids our understanding of D.D.'s current challenges to briefly state our prior determination of these issues.

We reversed the trial court's September 23, 2005 orders because Minnesota, not New Jersey, had subject matter jurisdiction over custody and visitation issues. D.D. I, supra, (slip op. at 33-34). Regarding the due process challenges attacking the in camera interview of T.S., we noted that so long as D.D.'s counsel was permitted to submit questions to be asked of the child while he listened to the interview as it progressed, it "constituted the functional equivalent of [D.D.] being present for [due process] purposes[.]" D.D. I, supra, (slip op. at 39). Also, we found harmless the court's failure to make the four-prong analysis required by State v. Cofield, 127 N.J. 328, 338 (1992), prior to admitting evidence of defendant's act of downloading pornography on his work computer. D.D. I, supra, (slip op. at 39-40). Finally, we found no error in denying the admission of defendant's proposed polygraph evidence. Id. at 40.

In an Emergency Temporary Order, the District Court for the First Judicial District, Carver County, Minnesota (Minnesota court) applied the provisions of the September 2005 New Jersey orders, including that M.D. and K.D. remain in R.C.'s custody pending its further decision, and that D.D.'s visitations be supervised until its full review. Following a hearing, the Minnesota court relinquished jurisdiction to New Jersey to determine child custody and parenting time issues, but retained jurisdiction over the remaining issues raised in the post-judgment divorce motions. The children remained in R.C.'s custody, and D.D. was granted supervised visitation.

On January 17, 2007, DYFS filed an amended verified complaint based upon newly discovered evidence that the downloads on D.D.'s work computer included child pornography. The then assigned trial judge heard arguments advanced by the parties on the effect of our prior opinion. D.D. argued our reversal rendered the September 2005 orders a nullity, entitling him to a new fact-finding hearing on all issues. DYFS and the children's respective law guardians opposed any need for re-presentation of T.S.'s testimony and maintained the court should conduct only a limited evidentiary hearing to amplify and update the record. The then assigned Family Part judge rejected D.D.'s arguments and held a compliance review hearing. The September 2005 restraints on D.D.'s contact with M.D. and K.D. were continued. D.D. again sought appellate relief.

We again reversed, explaining the effect of the prior reversal was that no vestige of the September 2005 orders remained in effect and a de novo fact-finding hearing was necessary. New Jersey Div. of Youth and Family Servs. v. D.D. (D.D. II), No. A-3745-06T2 (App. Div. Jan. 17, 2008) (slip op. at 6-7). We required T.S.'s testimony to be

taken in open court or, if the judge elects in his [or her] discretion to have her re-interviewed in chambers, see R. 5:12-4(b), all counsel shall have the rights to either be present or to observe the child's responses contemporaneously through closed circuit television or a comparable video link, in accordance with N.J.S.A. 2A:84A-32.4. Consistent with our prior opinion, all counsel shall be afforded the opportunity to submit to the court additional questions to pose to T.S. after the initial portions of such an interview.

. . . .

A renewed inquiry of T.S. on such potential improper communication [by R.C. in violation of the court's sequestration order] shall be permitted. If such a violation is found by the court, it may fashion an appropriate remedy, which may include an evidential discounting of T.S.'s credibility.

[D.D. II, supra, (slip op. at 7-8).]

As a precautionary measure, we interposed short-term interim restraints on D.D.'s contact with his children and ordered an expedited hearing. D.D. II, supra, (slip op. at 9).

On March 11, 2008, the fact-finding hearing on remand began before a third Family Part judge then assigned to the matter. The trial continued over five additional days. T.S., then age sixteen, testified in the courtroom as the trial judge and she sat at counsel table. Neither D.D. nor R.C. were present. However, D.D.'s attorney, the Deputy Attorney General on behalf of the Division, and the Law Guardians for T.S. and M.D. and K.D. were seated in the gallery. When all questions were posed on "direct" the court recessed, allowed counsel to consult with their respective clients and to submit follow-up questions, which were then asked of T.S.

During the fact-finding hearing, the Division presented testimony from Matthew Hengst, a DYFS caseworker; Officer Matthew Dunn, special agent for the United Stated Department of Homeland Security, Child Exploitation Section, who provided information on the nature and content of "Lolita's Kingdom" and reviewed the files downloaded by D.D.; R.C.; Dessertine; J.K., who identified a written statement prepared by her daughter W.K., an alleged child victim of D.D.'s inappropriate sexual behavior; Richard Vallacchi, Roche's network administrator, who, analyzed the files on D.D.'s work computer and, although unable to open them, matched 827 files that had a comparable size and name to files on a website under the domain name "lolitaskingdom"; Dr. Phillip Witt, a clinical psychologist who specialized in sex offenders and was consulted by D.D. when he was ordered to obtain an evaluation; and, W.K., age seventeen, who testified on rebuttal in a manner similar to T.S. D.D. testified on his own behalf.

The court concluded DYFS had proven by a preponderance of the evidence that D.D. committed an act of sexual abuse upon T.S. and posed a risk of sexual harm to M.D. and K.D. The trial judge credited T.S. and found D.D.'s testimony incredible. The court determined D.D.'s act of downloading pornography was not relevant to determine whether he engaged in acts of abuse toward T.S. Also, the court found the probative value of W.K.'s testimony was not outweighed by any prejudice, and the evidence was "very material" to "whether the defendant had a sexual appetite that was likely to be aroused or gratified by being near a girl of the age of around ten." The order entered continued the September 23, 2005 custody provisions for M.D. and K.D., imposed supervised contact between D.D. and his daughters, and ordered him to engage in counseling. This appeal and cross-appeal ensued.

II.

Our review of a trial court's factual findings is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing, Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Since a trial court "'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Cesare, supra, 154 N.J. at 412 (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)). In this regard, a Family Part judge "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand" and "has a 'feel of the case' that can never be realized by a review of the cold record." New Jersey Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting New Jersey Div. of Youth and Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). Consequently, we do "not disturb the 'factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms, supra, 65 N.J. at 484). However, we are not bound by "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995).

A finding of abuse or neglect must be based on a preponderance of the competent, material, and relevant evidence N.J.S.A. 9:6-8.46(b). Under the preponderance standard, the "evidence must demonstrate that the offered hypothesis is a rational inference, that it permits the trier[] of fact to arrive at a conclusion grounded in a preponderance of probabilities according to common experience." In re Estate of Reininger, 388 N.J. Super. 289, 298 (Ch. Div. 2006) (citing Joseph v. Passaic Hosp. Ass'n, 26 N.J. 557, 574-75 (1958)). Recognizing the special expertise of judges hearing matters in the Family Part, we note if the trial judge's conclusion is evidentially supported, we accept it. Cesare, supra, 154 N.J. at 412. We reverse "[o]nly when the family court's conclusions are so 'clearly mistaken' or 'wide of the mark'" to "ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605).

III.

A.

As he did in the first appeal, D.D. raises a constitutional challenge to the methodology utilized to elicit T.S.'s testimony. Prior to trial, the question of how to present T.S.'s testimony arose. After considering T.S.'s age and Dessertine's recommendation that she not testify in open court, the trial judge determined T.S. would not be called as a routine trial witness and stated

I'm going to issue the following restrictions on her testimony . . . . First of all, because I don't have a video link to chambers, -- that would have been my first choice, but I don't have it, so I'm going to question her myself. I'm going to question her in the setting of this courtroom. I think I will probably do it sitting at counsel table and allow counsel to have submitted questions for direct examination ahead of time. Allow counsel to remain in the courtroom in the gallery area, listen to the answers and then submit questions for cross examination after they've heard the direct statements made by [T.S.] in response to my questions.

I think the only evenhanded thing to do is to ban all parties from the courtroom and anybody else, . . . except of course, courtroom personnel. I have my sheriff's officer and I will have my court clerk present.

That will as effectively as I can do, simulate an interview in chambers with counsel watching it via video feed. I think it will enhance [T.S.'s] comfort level, if that's possible, by sitting at counsel table with her rather than being on the bench and putting her on a witness stand.

And I think that ordering [D.D.] to be absent from the proceeding is too prejudicial to his side of the case, if I allow [R.C.] to remain in the courtroom and have the advantage of hearing it and suggesting questions to her counsel. That seems to be inherently unevenly treated. So I will have no parties in the courtroom while this is going on or anybody else except counsel and my staff.

D.D. argues the procedure followed was "highly irregular" and he adds the evidence elicited by W.K., who was interviewed in the same manner, must also be excluded.

The right of an accused to be confronted with the witnesses against him is protected by the Sixth and Fourteenth Amendments of the United States Constitution and by Article I, paragraph 10 of the New Jersey Constitution. State v. Washington, 202 N.J. Super. 187, 191 (App. Div.), certif. denied, 102 N.J. 308 (1985). "The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845, 110 S. Ct. 3157, 3163, 111 L. Ed. 2d 666, 678 (1990).

"Although the constitutional right to confrontation is firmly entrenched in American jurisprudence, the right is not absolute." State v. Smith, 158 N.J. 376, 384 (1999) (quoting Craig, supra, 497 U.S. at 844, 110 S. Ct. at 3163, 111 L. Ed. 2d at 677). For example, the constitutional safeguards afforded to criminal defendants do not attach in the same way to civil litigants. A.B. v. Y.Z., 184 N.J. 599, 604 (2005). Specific to this matter, we note State statutes and Court Rules limit confrontation when the witness is a child, particularly a child victim of sexual abuse. New Jersey Div. of Youth & Family Servs. v. J.B., 120 N.J. 112, 126 (1990). The protection of children from undue trauma associated with testifying is an important public policy goal. Smith, 158 N.J. 376, 386 (1999). Thus, in Title 9 matters, the measure of confrontation of a child victim appearing as a witness may be circumscribed by Rule 5:12-4(b) or N.J.S.A. 2A:84A-32.4.

"Trial judges have broad discretion in abuse and neglect cases, as well as custody and visitation matters untainted by an allegation of abuse or neglect, to conduct a private examination of a child." New Jersey Div. of Youth and Family Servs. v. L.A., 357 N.J. Super. 155, 168 (App. Div. 2003) (citing New Jersey Div. of Youth & Family Servs. v. S.S., 185 N.J. Super. 3, 7 (App. Div.), certif. denied, 91 N.J. 572 (1982)). Under Rule 5:12-4(b), a Family Part judge has discretion in a "child's best interests" to enter orders allowing a child's testimony to be "taken privately or in chambers or under such protective orders as the court may provide." Ibid. The purpose of a private interview with the child is to afford the trier of fact the opportunity to assess the child's credibility, his or her powers of communication and observation, and his or her demeanor. Ibid.

The court's authority over the manner in which trials are conducted is reinforced by the Rules of Evidence.

The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

 
[N.J.R.E. 611(a).]

Further support for the proposition that the right to in-court, face-to-face confrontation is not absolute is found in N.J.S.A. 2A:84A-32.4, which sets forth an alternative means of securing a child-victim's testimony out of the normal courtroom setting. The statute states, in pertinent part:

a. [I]n any action alleging an abused or neglected child . . ., the court may, on motion and after conducting a hearing in camera, order the taking of the testimony of a witness on closed circuit television at the trial, out of the view of the . . . defendant, or spectators upon making findings as provided in subsection b. of this section.

b. An order under this section may be made only if the Court finds that the witness is 16 years of age or younger and that there is a substantial likelihood that the witness would suffer severe emotional distress if required to testify in open court.

. . . .

d. The defendant's counsel shall be present at the taking of testimony in camera. If the defendant is not present, he and his attorney shall be able to confer privately with each other during the testimony by a separate audio system.

[N.J.S.A. 2A:84A-32.4].

The use of the authorized statutory procedure "does not violate an accused's right of confrontation under either the United States or New Jersey Constitutions." State in Interest of B.F., 230 N.J. Super. 153, 158 (App. Div. 1989); Smith, supra, 158 N.J. at 386; State v. Bass, 221 N.J. Super. 466, 476-77 (App. Div. 1987), certif. denied, 110 N.J. 186 (1988); State v. McCutcheon, 234 N.J. Super. 434, 439 (Law Div. 1988).

Thus, when taken together, the provisions of the statute and court rules reflect the State's interest in encouraging witnesses and victims of child abuse to testify, J.B., supra, 120 N.J. at 126, and grant to a trial judge the discretion to fashion protections in the best interest of the child when the testimony of a child-victim is necessary for the prosecution of the Division's complaint for abuse and neglect.

D.D. suggests the trial judge failed to follow the dictates of the statute in two regards. First, T.S. was almost seventeen and W.K. was over seventeen. Second, the record is void of any proof of "a substantial likelihood that the witness would suffer severe emotional distress if required to testify in open court." N.J.S.A. 2A:84A-32.4. D.D.'s theory is R.C. used the event as a weapon in the parties' matrimonial dispute. He maintains crafted cross-examination directly confronting T.S. would have probed the rampant inconsistencies in T.S.'s versions of the events on August 23, 2001, and uncovered the truth that T.S. dreamt the incident.

Although we suggest more detailed findings should have been made by the trial judge, and we agree N.J.S.A. 2A:84A-32.4 is inapplicable when assessing the manner to present W.K.'s testimony, A.B., supra, 184 N.J. at 604. We find the procedures employed were within the discretion of the trial court and any errors were not "clearly capable of producing an unjust result." R. 2:10-2.

The first step in assessing a child's ability to understand the process of truth-telling and to testify must involve a determination of his or her emotional state. In the exercise of discretion on this issue, the trial judge is encouraged to conduct "a face-to-face interview with the child." State v. Crandall, 120 N.J. 649, 663 (1990). Here, the trial judge did not specifically speak to T.S. to assess her ability to testify, but rather considered Dessertine's recommendation as to the child's emotional strength, T.S.'s maturity, based on her then age, and her past ability to participate in an in camera interview and review by the prosecutor's office. Here, it cannot be disputed that T.S., who was still sixteen, was capable of understanding the oath and providing testimony as a witness in this matter.

The second finding must be whether the child's testimony should be presented in the routine of a trial, face-to-face with the alleged abuser, or in some other manner. When T.S. related the facts surrounding the abuse to Dessertine, even though the incident had occurred four years earlier, she was weeping. As a result, Dessertine counseled against the child testifying in D.D.'s presence and advised the court to avoid subjecting her to perceived hostile cross-examination. The trial judge reviewed Dessertine's recommendation and inferred T.S. "expressed concerns about testifying in a full courtroom." The trial judge additionally considered the nature of the Division's complaint, which involved sexual abuse. With an eye toward the need to protect minor victims of sex crimes from further trauma and embarrassment experienced in a trial proceeding, the court concluded T.S. should not testify in the course of the trial. The findings made, although sparse, were adequate to invoke the court's reasoned discretion and "inherent power to protect the witness[] from further damage by providing an alternate means of testifying." A.B., supra, 184 N.J. at 608 (J. Rivera-Soto, concurring).

The court did not have a closed circuit television system, making exact compliance with N.J.S.A. 2A:84A-32.4 impossible. Nevertheless, guided by the statute and in accordance with Rule 5:12-4(b), the trial judge faced with limited court resources devised a procedure designed to balance the needs of the child-witness and afford D.D. all process he was due. While deficient technology precluded D.D. and R.C. from a simultaneous review of T.S.'s testimony, their interests were adequately protected and represented by counsel. Further, the court stopped the examination to allow attorney and client to confer and generate additional necessary questions to be posed to the child witnesses.

The examination of T.S. was detailed and probing. We have no doubt it successfully ensured the reliability of the evidence in the context of an adversary proceeding while tempering the courtroom process to safeguard T.S. from further emotional trauma. D.D. offers nothing to suggest the truth was not served by employing this process. His argument suggesting T.S. was a pawn of her mother to advance R.C.'s interests in the divorce is flawed because T.S. related the events to R.C. and D.D. long before marital strife set into their relationship. Further, there was nothing in T.S.'s prior life experience to suggest she would have such sexualized knowledge or lewd thoughts about her stepfather at ten years of age. Moreover, the theory that T.S. had a dream was initiated and advanced by D.D.

The trial judge made detailed findings regarding T.S.'s credibility, finding her to be "forthright in demeanor" and noting, she "gave direct answers" and had "good constant eye contact." D.D.'s testimony was found to be "frankly incredible." The trial judge's opinion details the basis for these findings, which provides more than ample support. Under all the facts and circumstances presented, we will not interfere with the trial judge's exercised discretion.

Regarding W.K.'s testimony, we agree with D.D. that she was seventeen and thus, over the maximum age to allow application of the statute. A.B., supra, 184 N.J. at 608. Nevertheless, we reject D.D.'s urging for reversal. On behalf of D.D., counsel suggested the court follow the same procedures employed for T.S. We conclude the error in attempting to invoke the statute was not plain error, as it was not "clearly capable of producing an unjust result." R. 2:10-2.

B.

D.D. next argues the evidence does not support the trial court's finding that M.D. and K.D. were abused and neglected, as defined by N.J.S.A. 9:6-8.21(c). D.D. maintains (1) no evidence showed D.D. inappropriately touched M.D. or K.D.; (2) at the time of the alleged incident with T.S., M.D. was less than one year old and K.D. was not yet born; and (3) when DYFS acted, the alleged incident with T.S. had occurred over four years earlier, supporting D.D.'s position he posed no imminent danger of a substantial risk of harm to his children. We disagree.

We start with the relevant statutes. N.J.S.A. 9:6-8.46(a) provides:

(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[.]

"'Predictions as to probable future conduct can only be based upon past performance. . . . We cannot conceive that the Legislature intended to guarantee parents at least one chance to . . . abuse each child.'" DYFS v. Robert M., 347 N.J. Super. 44, 68 ( App. Div.) (quoting J. & E. v. M. & F., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978)), certif. denied, 174 N.J. 39 (2002). Thus, a "court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect'" to make a finding of abuse. DFYS v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of DMH, 161 N.J. 365, 383 (1999)), certif. denied, 182 N.J. 426 (2005).

In this matter, the trial court's findings that D.D. committed a sexual offense against T.S. and exposed himself to W.K. were supported by sufficient credible evidence. The uncontroverted testimony of Dr. Witt, whom the court found to be a "highly credible witness[,]" who gave precise testimony and who "would not be led by the questioners," agreed that if D.D. committed the act of abuse, as alleged, he "would clearly present a risk" to his children, that was "unacceptable." Dr. Witt was unequivocal. He stated: "if I assume he placed his penis against [T.S.'s] face, you don't need to go any further than that to know he's a risk so that's the most important thing." Dr. Witt further attested to the risk of harm to D.D.'s daughters if defendant, in fact, was fired from his job for looking at pornography, after having been previously disciplined, because "that certainly would raise concerns about his sexual compulsivity that much is obvious."

T.S. was ten and W.K. twelve when D.D. acted. The argument that the risk to M.D. and K.D., ages eight and seven, is remote and not "imminent and substantial" is hollow and attempts to minimize the factual findings based on this record. The law support's the court's actions to protect a child from becoming a victim of parental abuse. See J. & E. , supra, 157 N.J. Super. at 493 ("Evidence of parents' fitness or unfitness can be gleaned not only [from] their past treatment of the child in question but also from the quality of care given to other children in their custody.").

C.

We also reject the challenge to the admissibility of the evidence that D.D. downloaded child pornography on his work computer, resulting in the termination of his employment. Citing N.J.R.E. 404(b), defendant argues Cofield, supra, 127 N.J. 328, requires reversal.

Perhaps the trial judge's failure to perform a Cofield analysis resulted from her determination that D.D.'s possession of child pornography was not evidential when determining the ultimate issue of whether D.D. abused T.S. However, she did consider the evidence when determining D.D.'s compulsivity. The four prongs of Cofield should have been analyzed. New Jersey Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 181 (App. Div. 2005). However, the trial court's conclusion that M.D. and K.D. were at risk was nonetheless supported by the finding D.D. abused T.S. and Dr. Witt's expert testimony that the act of abuse posed a risk of harm to D.D.'s daughters. The error in this instance was harmless. R. 2:10-2.

D.

With respect to D.D.'s arguments presented in Points IV, V, VI and VII, we have reviewed the record in the light of the written arguments advanced by the parties and conclude the issues presented by defendant are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(A) and (E). Also, based on our determination, we decline to address the issues raised in the cross-appeal. We make these limited comments.

The court did not rely on W.K.'s written statement to make its finding of abuse and neglect. It is clear from the trial judge's opinion she merely considered W.K.'s testimony. Therefore, the provisions of N.J.S.A. 9:6-8.46(a) were not abrogated.

D.D. also suggests he was denied due process because the court would not admit his proposed polygraph results. The law has not wavered from the general premise that "polygraph results are not admissible in evidence in New Jersey." State v. A.O., 198 N.J. 69, 83 (2009) (citing State v. Domicz, 188 N.J. 285, 312-13, (2006)). "There remains a 'lack of scientific consensus concerning the reliability of polygraph evidence, which in turn is reflected in the disagreement among state and federal courts concerning the admissibility of such evidence.'" Ibid. (quoting Domicz, supra, 188 N.J. at 312). Absent a stipulation by counsel, the Court "has not sanctioned and does not now entertain the admission of polygraph results." Id. at 86. "Although there are few reported decisions involving the admissibility of polygraph evidence in a civil suit, almost all courts that have considered the question have held that the results of a polygraph test or the refusal to take a polygraph test are not admissible in evidence." Senders v. CNA Ins. Cos., 212 N.J. Super. 518, 520 (Law Div. 1986) (citations omitted).

 
Affirmed.

Dessertine also told the Division that T.S. recounted an incident between D.D. and T.S.'s best friend and next door neighbor, W.K. In W.K.'s later obtained statement, she stated D.D. came down to the basement wrapped in a towel, obtained W.K.'s attention, and then removed the towel. She stated D.D. asked her to keep the incident a secret.

The Hunterdon County Prosecutor's Office jointly investigated the allegations of D.D.'s interactions with T.S. and W.K. On January 25, T.S. was interviewed. W.K. declined to be interviewed. The Prosecutor declined to initiate formal proceedings against D.D.

(continued)

(continued)

27

A-4642-07T4

RECORD IMPOUNDED

June 1, 2009