NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. L.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

L.H.,

Defendant-Appellant,

and

M.R.,

Defendant.

_______________________________

IN THE MATTER OF J.H., a minor.

_______________________________

October 21, 2013

Submitted October 7, 2013 Decided

Before Judges Parrillo, Kennedy and Guadagno.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-0274-10.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jonathan Villa, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.H. (Damen J. Thiel, Designated Counsel, on the brief).

PER CURIAM

Following a fact-finding hearing in this Title 9 litigation filed by the Division of Youth and Family Services (Division) against defendant L.H. (Lisa) and M.R. (Mica),2 the trial judge concluded that on January 28, 2010, Lisa had abused and neglected her four-year old step-son D.S. (Dan), by beating him with her hands and striking him in the face with a belt. In a lengthy letter opinion accompanying the judge's August 24, 2010 order, he explained, in pertinent part,

[t]he photographs marked P-3 into evidence are quite disturbing. They show injuries to both sides of [Dan]'s face. A linear mark can be seen by his right temple between his right eye heading towards his right ear and the exact same mark can be seen between his left eye heading towards his left ear. Also, bruises can be seen on his upper cheeks and his forehead. It must also be stressed that P-1 in evidence indicates that on several occasions [Dan] said that [Lisa] [] hit him with a belt as well as with her hands on January 28, 2012. . . .

. . . .

The injuries depicted in the four photographs marked P-3 into evidence did not come from a fall down accident and served to "corroborate" the hearsay statement of [Dan], N.J.S.A. 9:6-8.46a(4). These injuries also did not result from a simple open handed series of slaps to the face. Something more insidious occurred, possibly involving a belt or its buckle.

The court acknowledges that its findings of abuse and neglect against [Lisa] [] [are] based on a single event involving the beating administered on the evening of January 28, 2010. However, the resulting damage was sufficient enough to attract the attention of the school authorities the very next day, as well as DYFS and the prosecutor's office.

It would be illogical to suggest that the beating resulting in the injuries depicted in P-3 was merely an anecdotal event in the development of four-year old [Dan], something he would soon forget.

Lisa appeals the abuse and neglect finding and raises the following arguments:

I. THERE WAS A LACK OF EVIDENCE TO SUPPORT THE FINDING OF ABUSE OF [DAN] BY [LISA].

II. THE COURT'S LETTER OPINION MADE NO FINDINGS CONCERNING [LISA]'S SON, J.H. (NOT RAISED BELOW).3

We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

I.

We briefly set forth the facts in the record.

On January 29, 2010, the Division received a referral from Dan's pre-school concerning allegations that he had been physically abused. The reporter told the Division that Dan had come to school that morning with bruises on both sides of his face. The injury to Dan's face reportedly happened sometime the day before, on January 28, 2010, at his home. According to the reporter, Dan first stated that he fell, and then he said he did not know what happened.

Based on the report, a Division caseworker went to Dan's school and interviewed him. She stated that Dan had "two identical marks" on his face "from . . . the corner of his eye to his ear on both sides." The caseworker took photographs of Dan's face, and the Division submitted the pictures into evidence at the fact-finding hearing.

During the interview, the caseworker again asked Dan to tell her what happened, and he said that "he was hit in the face with a belt, and that she used her hands and she hit him in the face." He also stated that his "Daddy was home," and that his "Daddy told [Lisa] not to hit him in the face." After interviewing Dan, the caseworker contacted the prosecutor's office.

The caseworker also went to the family's home and spoke with Lisa about the incident. She told the caseworker that her paramour, Dan's father, was not home when the incident occurred, and that Dan and another child were in the playroom when she heard a "thump." She stated that Dan fell on a toy in the playroom, and she only recalled seeing redness on one side of the child's face. Lisa denied striking Dan.

Former Hudson County Prosecutor's Detective Justin Kealy testified at the fact-finding hearing. Kealy worked in the Special Victim's Unit from 2007 through 2010, where he investigated allegations of child abuse and sexual assault. In those three years, he was involved in "hundreds" of child abuse cases.

As part of his training, Kealy attended courses on the investigation of child abuse allegations and the appropriate way to interview child witnesses and victims. Kealy interviewed Dan after the Division transported him to the Prosecutor's Office. He observed scratches and bruises on either side of Dan's eyes, and a bruise on his forehead above his left eye. When Kealy asked Dan "what happened," Dan said, "[Lisa] did it."

Despite an objection from defense counsel pertaining to his qualifications, Kealy opined that the injuries to Dan's face "did not appear to be accidental." He believed that if Dan had fallen, an injury would not have occurred on both sides of his face.

The trial judge found the testimony of the caseworker and Detective Kealy to be credible. The trial judge then found,

The beating itself, combined with the fact that [Dan] was told to lie about it (by claiming it was the result of a fall) clearly indicate that his emotional or mental well-being has been impaired or is in serious danger of becoming impaired, N.J.S.A. 9:6-8.21c.(4)(b). This is the exact type of thing that could turn [Dan] into a child batterer himself. The court is satisfied that, left unaddressed, the probability of present or future harm exists. DYFS v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004).

This appeal followed.

II.

"The scope of appellate review of a trial court's fact-finding is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). Family courts have special expertise with issues involving the welfare of children; therefore, appellate courts should accord deference to family court fact-finding and credibility determinations. Id. at 412-13; see also N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 112 (2011); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).

As a general principle, a judge's findings of fact and conclusions of law will not be disturbed unless a reviewing court is "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." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (citation omitted). Unless the judge goes so wide of the mark as to be "clearly mistaken and so plainly unwarranted that the interests of justice demand intervention and correction[,]" Matter of Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (citations omitted), we will not substitute our opinion for that of the Family Part judge.

"The fact-finding hearing is a critical element of the abuse and neglect process." N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003); N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002). The judge, as the fact-finder, is there "to determine whether the child is an abused or neglected child as defined herein." N.J.S.A. 9:6-8.44; J.Y., supra, 352 N.J. Super. at 265. "In a fact-finding hearing (1) any determination that the child is an abused or neglected child must be based on a preponderance of the evidence and (2) only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b).

N.J.S.A. 9:6-8.21(c)(4) defines an "abused or neglected child" as:

a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court.

Lisa argues that abuse was not established by a preponderance of the evidence because the trial judge: (1) based his finding on Dan's unreliable hearsay statement; and (2) improperly allowed Detective Kealy to testify as an expert. Neither of these arguments is persuasive.

In determining a case of abuse or neglect, the court should base its determination on the totality of the circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). "One act may be substantial or the sum of many acts may be substantial." Id. at 329-30 (alteration in original) (internal quotation marks and citation omitted).

"It is difficult to marshal direct evidence of parental abuse and neglect because of the closed environment in which the abuse most often occurs and the limited ability of the abused child to inculpate the abuser." N.J. Div. of Youth & Family Servs. v. A.C., 389 N.J. Super. 97, 108 (App. Div. 2006).

Consequently, N.J.S.A. 9:6-8.46(4) establishes an exception to the hearsay rule, and allows "previous statements made by the child relating to any allegations of abuse or neglect [to] 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 addition, N.J.S.A. 9:6-8.46(3) states in relevant part:

any . . . photograph . . . made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any hospital or any other public or private institution or agency shall be admissible in evidence as proof of that condition, act, transaction, occurrence or event, if the judge finds that it was made in the regular course of the business of any hospital or any other public or private institution or agency, and that it was in the regular course of such business to make it, at the time of the condition, act, transaction, occurrence or event, or within a reasonable time thereafter, shall be prima facie evidence of the facts contained in such certification.

Here, the trial judge based his decision on the documentary evidence and the testimony of the two witnesses, which included the hearsay statements of Dan, along with the photographs of the child's injury on the date of the incident. While, "[t]he most effective types of corroborative evidence may be eyewitness testimony, a confession, an admission or medical or scientific evidence[,] . . . corroborative evidence need not relate directly to the accused. By its nature, corroborative evidence 'need only provide support for the out-of-court statements.'" L.A., supra, 357 N.J. Super. at 166-67 (quoting N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002)). Thus, a child's hearsay statement may be admitted into evidence, but may not be the sole basis for a finding of abuse or neglect. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 11 (2011).

In support of her argument that Dan's statement was unreliable, Lisa alleges that the interviewing techniques used by the Division's caseworker and Kealy were improper and coercive. Specifically, Lisa argues that Dan was coerced because: 1) he was subjected to repeated questions by three "authority figures;" 2) he was only four years old; and 3) the amount of time that passed from the first interview to the last interview.

No testimony was elicited at the hearing, from either witness, to support Lisa's claim that Dan was the subject of improper or coercive interviewing techniques. While Dan's story varied, it was still relatively consistent throughout the course of the day. In addition, Dan's statements to the reporter, the caseworker, and Kealy, were not the only evidence relied by the trial judge to sustain his finding that defendant abused Dan.

While multiple interviews may distort a young child's account of an event, there is no strict prohibition on multiple interviews. Rather, the focus is on the repetition of questions, and the use of suggestive language, which this record does not reflect. State v. Michaels, 136 N.J. 299, 320 (1994).

Lisa also argues that the judge erred by allowing former Detective Kealy to give his opinion as to the cause of Dan's facial injury, and in using his testimony as part of the basis for the judge's findings and conclusions.

At the fact-finding hearing, the trial judge overruled defense counsel's objection to the admission of Detective Kealy's testimony concerning the cause of the child's injuries. After the Division laid a foundation for Kealy's testimony, the judge found that based on his training and experience investigating child abuse, Kealy was qualified to give his opinion as to the cause of Dan's injury.

We review a decision regarding the admission of evidence and testimony under an abuse of discretion standard. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). "[I]n making relevance and admissibility determinations," the trial judge's exercise of his "broad discretion" "will not [be] disturb[ed], absent a manifest denial of justice." Lancos v. Silverman, 400 N.J. Super. 258, 275 (App. Div.), certif. denied sub nom., Lydon v. Silverman, 196 N.J. 466 (2008). We discern no abuse of discretion here.

The record suggests that Kealy's testimony was admitted as a lay opinion pursuant to N.J.R.E. 701. Under that rule, an opinion or inference may be admissible if it "(a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." Ibid. Therefore, a lay witness can render an opinion on matters of common knowledge provided that the witness's opinion is rationally based on his personal knowledge, and obtained through his own senses. State v. Labrutto, 114 N.J. 187, 197-98 (1989).

"The admissibility of opinion evidence rests within the discretion of the trial court." Id. at 197; State v. Bealor, 187 N.J. 584, 586 (2006). "Courts in New Jersey have permitted police officers to testify as lay witnesses, based on their personal observations and their long experience in areas where expert testimony might otherwise be deemed necessary." Id. at 198. See, e.g., Pierson v. Frederickson, 102 N.J. Super 156 (App. Div. 1968) (finding a lay witness is qualified to give his opinion on the speed of a moving car based on his auditory perception); Searles v. Public Service Ry. Co., 100 N.J. 222 (1924) (holding that a lay witness could give an opinion as to whether a person was drunk); Labrutto, supra, 114 N.J. at 199-202 (deciding that a non-expert police officer may testify as to the point of impact of a collision).

Here, Kealy testified based on his observation of the child's injury that the two identical markings on both sides of Dan's face indicated that the injury was intentional, and not caused by an accident. Kealy's conclusion was rationally based on what he perceived, and the admission of that testimony did not constitute error.

The remainder of Lisa's arguments are without sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(1)(E).

With respect to Lisa's second point, we note only that the order under appeal that of August 24, 2010 did not concern Lisa's child J.H. See R. 2:5-1(f)(3)(A). Only the judgment or orders "designated in the notice of appeal . . . are subject to the appeal process and review." Pressler and Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2013). Also, the findings supporting the order of August 24, 2010, did not form the predicate for the court's disposition order of September 9, 2010, notwithstanding the reference by Division counsel to the August 24, 2010 findings in discussions with the court. Rather, the disposition order had its initial genesis in an order of February 22, 2010, after Lisa had been arrested in connection with another incident. In any event, Lisa was later given physical custody of J.H. and shared joint legal custody of the child with M.R., J.H.'s biological father.

Affirmed.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including the renaming of the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 Because of the sensitive issues involved, we refer to all the parties by fictitious names.

3 As we will note briefly hereinafter, Lisa is actually challenging another order on a different child. That order, however, is not the subject of this appeal.