DIVISION OF YOUTH AND FAMILY SERVICES v. R.D. and S.D IN THE MATTER OF A.M., A.M., A.D., A.D and A.D

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4256-10T4

A-4257-10T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

vs.

R.D. and S.D.,

Defendants-Appellants.

________________________

IN THE MATTER OF

A.M., A.M., A.D., A.D.,

and A.D.,

Minors.

__________________________________

March 12, 2012

Submitted: January 25, 2012 - Decided:

Before Judges Cuff and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-148-11.

Joseph E. Krakora, Public Defender, attorney for appellant R.D. (Brian Donnelly, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant S.D. (Thomas G. Hand, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Natalie Behm, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minors (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

In these consolidated appeals, R.D. and S.D. appeal from orders finding that each man sexually abused A.M., the stepdaughter of R.D. and the maternal granddaughter of S.D. Each defendant argues that the abuse finding is the product of erroneous evidentiary rulings and unsupported by competent evidence. We affirm.

Agnes1 is the mother of five children. Defendant R.D. is the stepfather of Anna and Anthony, the oldest of Agnes's five children. He is the biological father of the three younger children. On October 20, 2010, ten-year-old Anna disclosed to her mother various sexual encounters between her and R.D. and her maternal grandfather S.D. that occurred between August and October 2010. Anna told her mother that on multiple occasions S.D. "humped" her and exposed his penis to her. Anna described in detail the manner in which she was approached by S.D., and the locations in the house where the incidents took place. Anna also informed her mother that R.D. wrapped his arms and legs around her body and put her hands down his pants.

The following day, when Anna repeated her disclosures to her mother, Agnes reported the allegations to the Division of Youth and Family Services (Division). Anna repeated these statements to a Division investigator, who informed the police.

At the fact-finding hearing, Anna did not testify. Her mother testified and related Anna's disclosures to her. Agnes testified she believed her daughter because S.D. sexually molested her as a child. She also stated that she worked without a day off between August and October. S.D. provided child care for the children while Agnes worked. On the day that R.D. sexually assaulted Anna, Agnes worked a double-shift and he watched the children. When Agnes confronted R.D., he did not deny the allegation. Rather, he told her he had to sleep. Anna also testified that she had observed increased episodes of bed-wetting, tearfulness and aggression by Anna since the reported assaults.

The Division caseworker who interviewed Anna, also testified at the fact-finding hearing. He stated that Anna provided a detailed disclosure of sexual abuse consistent with the disclosures to her mother.

Prior to the fact-finding hearing, Dr. Diane Snyder, a psychologist, conducted a clinical interview of Anna. The purpose of the interview was to identify any symptoms of maltreatment and to provide recommendations for treatment. Dr. Snyder rendered a report in which she concluded that the symptom pattern related by Agnes and Anna was consistent with post-traumatic stress disorder attributable to sexual abuse. She conceded that the symptoms could be attributed to bullying at school as well as sexual abuse. She ruled out bullying due to Anna's reports of recurrent flashbacks, suicidal ideation, and a desire to run away. Anna attributed all of these circumstances to her experiences with R.D. and S.D.

Defendants did not testify. Following a review of the documentary evidence and the testimony, Judge Furnari found that S.D. and R.D. sexually abused Anna.2 The judge found that Agnes was an extremely credible witness and her testimony about Anna's accusations was sufficiently detailed. The judge accepted Dr. Snyder as an expert and admitted her report and testimony as evidence of Anna's emotional state following her disclosures. Judge Furnari found that Anna's disclosures were spontaneous and corroborated by the access each defendant had to her at the times Anna asserted the assaults occurred. The judge also found that Anna's emotional state following disclosure of the sexual assaults corroborated her allegations. The judge noted that R.D. did not deny the accusation when confronted with Anna's allegation by his wife.

On appeal, S.D. argues that he cannot be charged with abuse and neglect of a child because he was neither the parent nor guardian of Anna. He also contends Anna's statements to her mother were not admissible under the fresh complaint rule, Anna's allegations were not corroborated, Dr. Snyder was not qualified to render an opinion, and the finding of abuse and neglect is not supported by competent, material and reliable evidence. R.D. argues that Dr. Snyder should not have been permitted to testify because she had not completed the requirements for licensure as a psychologist. He also argues that her report should not have been admitted in evidence, and that Anna's various statements presented through the testimony of her mother, the caseworker and the psychologist were inadmissible hearsay.

S.D. argues that he is not a person within the scope of the child protective jurisdiction of the Division. He contends he was merely a visitor in his daughter's home. We disagree.

N.J.S.A. 9:6-8.21 to -8.73 governs actions filed by the Division to address complaints of abuse and neglect of children. A parent or guardian abuses or neglects a child if he "commits or allows to be committed an act of sexual abuse against the child." N.J.S.A. 9:6-8.21c(3). A parent or guardian is "any natural parent, adoptive parent, resource family parent, stepparent, paramour of a parent or any person, who has assumed responsibility for the care, custody or control of a child or upon whom there is a legal duty for such care." N.J.S.A. 9:6-8.21a. A "person having the care, custody and control of any child" is defined as "any person who has assumed the care of a child, or any person with whom a child is living at the time the offense is committed." N.J.S.A. 9:6-2.

Agnes testified that S.D. arrived in August and intended to stay in her home through December. While S.D. resided in her house, he agreed to watch the children while Agnes worked, and she authorized him to discipline the children in her absence. The record is barren of any evidence to the contrary. S.D. agreed not only to care for the children but also actually assumed the care of the children.

S.D.'s reliance on State v. Galloway, 133 N.J. 631 (1993) is misplaced. In Galloway, the defendant was visiting the home of his girlfriend who left an infant with the defendant when she left the house to pick up another child. Id. at 638. While the mother of the infant was gone, the infant began to cry, and the defendant shook the baby in an attempt to silence the child. Ibid. The Court reversed the defendant's conviction of third degree endangering the welfare of a child because his infrequent visits to his girlfriend and the baby could not be considered care, custody or control. Id. at 659.

The Court noted that "care, custody and control were separate terms with different meanings but encompassed a person who has 'assumed the care of a child' or is 'living with the child' or has a 'general right to exercise continuing control and authority over' the child." Id. at 659. Applying these terms to the defendant, the Court held that the evidence did not support the endangering a child conviction. The Court stated

The evidence was not sufficient to justify the submission of the third-degree child-endangermentcharge tothe jury. The evidence shows that at the time of crime, defendant did not live with or near [the girlfriend] and her baby. Defendant has dated her for only three months, visiting her on a weekly basis. Although he planned eventually to marry her and adopt the baby, the evidence does not indicate when that was to occur. Further, no evidence whatsoever concerned whether defendant had ever regularly, frequently, or continuously assumed the care of the child. Although defendant's relationship with the child may have been more than that of a mere babysitter, the evidence does not create a reasonable inference that defendant had assumed the kind of ongoing and continuous caretaking or supervisory responsibilities over the child that would be essential to establish the crime of third-degree endangerment.

[Id. at 662.]

S.D.'s relationship to the children and his responsibilities to the children were markedly different than Galloway. During the time he resided in the house, he was in charge of the children while Agnes worked. She had also given him the authority to discipline the children. S.D. is a person who can be the subject of an action by the Division to address allegations of sexual abuse of a child in his care.

We also reject the contention by S.D. and R.D. that Dr. Snyder could not render an expert opinion because she had not obtained her license as a psychologist in this State. The record clearly established that Dr. Snyder had obtained a doctoral degree in psychology, and had completed virtually all the requirements to permit her to sit for the licensure exam. The licensure preparation included thousands of hours of therapy under the supervision and guidance of a licensed psychologist, and hundreds of clinical evaluations. The lack of licensure affected only the weight to be accorded her testimony not its admissibility. See State v. Frost, 242 N.J. Super. 601, 616 (App. Div.) (clinical director of a women's resource center who was not licensed as a psychologist qualified to testify about battered-woman syndrome), certif. denied, 127 N.J. 321 (1990).

We also reject R.D.'s argument that Dr. Snyder's report was inadmissible because it was prepared in anticipation for litigation. Rule 5:12-4(d) permits the Division to submit in evidence reports by staff or consultants pursuant to N.J.R.E. 803(c)(6) and 801(d). Conclusions drawn from the facts contained in these reports are treated as prima facie evidence, subject to rebuttal. Rule 5:12-4(d). See N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011). Moreover, reports created by Division staff or medical or psychological consultants qualify as reliable business records pursuant to N.J.R.E. 803(c)(6) and 801(d). N.J. Div. of Youth & Family Servs. V. B.H., 391 N.J. Super. 322, 349-50 (App. Div.), certif. denied, 192 N.J. 296 (2007).

The record demonstrates that Dr. Snyder prepared the report in the regular course of her duties as a clinical psychologist, the report was prepared in proximity to her interview with Anna, and she obtained the information from Anna and her mother rather than from statements contained in other reports or documents and strictly for the purpose of establishing whether Anna required treatment and the nature of any required treatment. We, therefore, discern no basis to conclude that Judge Furnari misapplied the principles governing the exercise of his considerable discretion to admit the clinical interview report. We also note that Judge Furnari stated that he did not place a great deal of reliance on the report.

Both defendants also argue that the Division submitted insufficient evidence to support Anna's allegations of sexual abuse. They emphasize that Anna's out-of-court statements to her mother, the caseworker and Dr. Snyder may be admissible but cannot establish abuse or neglect absent corroborative evidence. They also contend that the alleged corroborative evidence is insufficient to satisfy the Division's burden or proof.

N.J.S.A. 9:6-8.46a(4) 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." In other words, "a child's hearsay statement may be admitted into evidence, but may not be the sole basis for a finding of abuse or neglect." P.W.R., supra, 205 N.J. at 33.

"The most effective types of corroboration in suchcases . . . are eyewitness testimony, a confession or admissions by the accused, and medical or scientific testimony documenting abuse." N.J. Div. Of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2001). Nevertheless, this court has noted the difficulty in presenting such direct physical or testimonial evidence in child sexual abuses cases:

"The child victim is often the only eyewitness to the crime, and physical corroboration is rare because the sex offenses committed against children tend to be nonviolent offenses such as petting, exhibitionism, fondling and oral copulation. Physical corroboration may also be unavailable because most children do not resist, either out of ignorance or out of respect for authority. Consequently, in order to give any real effect to the child victim hearsay statute, the corroboration requirement must reasonably be held to include indirect evidence of abuse. Such evidence has included a child victim's precocious knowledge of sexual activity, a semen stain on a child's blanket, a child's nightmares and psychological evidence."

[Id. at 435-36 (quoting State v. Swan, 114 Wash. 2d 613, 622-23 (1990), cert. denied, 498 U.S. 1046, 111 S. Ct. 752, 112 L. Ed. 2d 772 (1991)).]

Additionally, "[t]he corroborative evidence need not relate directly to the alleged abuser, it need only provide support for the out-of-court statements." Ibid.

In Z.P.R., this court reversed and remanded the trial court's dismissal of the Division's charges because the trial court failed to "fully appreciate[] the role of the sexual acting-out as possible corroborative evidence." Id. at 437. This court, however, declined to find that the victim's behavior "sufficiently corroborated the out-of-court statements as to justify a finding of sexual abuse" because such determination was properly left to the trial court. Id. at 436-37.

Here, Judge Furnari found certain evidence corroborated Anna's statements of sexual abuse. He found Anna was "suffering," as evidence by her increased bedwetting, which Dr. Snyder explained is indicative of having experienced a trauma. Likewise, he found her post-traumatic stress disorder indicative of sexual abuse, and the undisputed evidence established that each defendant had the opportunity to commit the sexual abuse.

Therefore, we hold that Judge Furnari did not misapply the principles governing out-of-court statements of child victims of abuse. Because Anna's hearsay statements of abuse by her grandfather and stepfather were admissible pursuant to N.J.S.A. 9:6-8.46a(4), we need not address whether these statements were also admissible as fresh complaint evidence.

Finally, we are satisfied that defendants' argument that the Division did not prove its allegations of sexual abuse by the preponderance of the evidence is unfounded. The trial judge's findings of fact are well-supported by the record and those findings support the ultimate conclusion that defendants sexually abused Anna. The child's allegations never varied. Both defendants had the opportunity to molest the child due to the mother's absence from the home due to work. Furthermore, her post-assault behavior was consistent with other victims of sexual abuse.

We, therefore, affirm the March 15, 2011 orders finding that S.D. and R.D. abused ten-year-old Anna.

Affirmed.

1 We have elected to use pseudonyms instead of initials for the mother and children.

2 The complaint also charged Agnes with abuse and neglect for leaving Anna in the care of S.D. and for using corporal punishment to discipline the children. Judge Furnari found that the Division failed to produce sufficient evidence to permit him to find that Agnes abused or neglected her children.