NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.P.

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NOT FOR PUBLICATION WITHOUT THE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.

C.P. and J.W.,

Defendants,

and

E.L.,

Defendant-Appellant.

IN THE MATTER OF

L.W. and J.W.,

Minors.

November 12, 2013

Submitted October 8, 2013 Decided

Before Judges Alvarez, Ostrer and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-354-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (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 (Randi Mandelbaum, Designated Counsel, on the brief).

PER CURIAM

Defendant E.L. appeals from an April 30, 2012 Family Part order entered after a fact-finding hearing, concluding that he physically and sexually abused his two stepdaughters, Lucy,2 then age nine, and Jane, then age six. For the reasons that follow, we affirm.

On December 19, 2011, a Dodd removal of the girls was effectuated by plaintiff New Jersey Division of Youth and Family Services (the Division), pursuant to N.J.S.A. 9:6-8.29, because school officials reported that Jane was bruised over her face and on her arms. When taken from the school to the hospital, Jane's injuries were photographed. The photographs were introduced during the fact-finding hearing. As described by the Division's investigator, Monique Williams, Jane's injuries included bruises on her face, rug burns on her forehead, welt marks on her arms, a mark on her leg, marks on her buttocks, and a bruise on her lower back.

When transported to the hospital and interviewed by Division workers, the girls disclosed that the bruises resulted from their mother, C.P., rubbing Jane's face on a rug because she had urinated on the floor in her bedroom. During that interview, Jane disclosed that both her mother and E.L. struck her frequently, and that E.L. struck her with a belt. The child also disclosed that E.L. had touched her "in her back hole with his finger," and that he had "stuck his finger in her butt and then spanked her with his hand on her butt" that very morning before she left for school. Jane told the Division worker that she wanted E.L. arrested because he had warned the girls that if they told anyone about what he did he was going to choke them.

Lucy reported that both E.L. and her mother frequently struck her, and that E.L. hit her with a belt as punishment for failure to clean her room or do her homework. She also revealed that E.L. had repeatedly touched her inappropriately and that, on a daily basis, he put his fingers on her genitalia or "in her hole." Lucy added that he would insert his penis both in her "front and her back." She asserted that this occurred in the morning before she left for school, and that she had not told anyone about the conduct because E.L. threatened to choke her if she did so.

After the Division interview, the girls were placed in a home separate from their older step-brother and step-sister, who were also removed. Lucy said that the step-brother, then an adolescent, had also molested her, but that, as far as she knew, E.L. did not know about his son's sexual contacts with her. Lucy reported that E.L. had also put his penis in her mouth, and had forced her to touch his penis.

When evaluated, Lucy was diagnosed with post-traumatic stress disorder, was experiencing flashbacks, and exhibited symptoms of anxiety and fear. She expressed concern that E.L. would kill everyone if his conduct was revealed, and feared that he would again sexually and physically abuse her. The child, who expressed suicidal ideation, engaged in self-injurious behaviors, such as drinking "cough syrup," and taking "Advil and Tylenol" because she "wanted something to feel better."

During the hearing, Monica Weiner, M.D., testified on behalf of the Division. She served as the assistant medical director at the Essex County agency that conducted forensic child abuse evaluations, and she was qualified as an expert in child abuse pediatrics. Weiner confirmed that when she examined Jane on the day of the Dodd removal, Jane had suffered injuries to her face, neck, right arm, back, buttocks, and right leg. In her opinion, these marks were consistent with severe spanking with the hand or a hard flat object such as a belt.

Weiner explained that the children's descriptions of E.L.'s sexual conduct towards them did not necessarily conflict with the absence of physical findings that might corroborate molestation, as the minimal entries described by the girls would not have resulted in genital injuries. In her view, the lack of physical findings was essentially neutral.

Diane Snyder, Ph.D., also testified regarding her psychosocial evaluation of Jane. She opined that Jane was both physically and sexually abused, and required individual therapy with a mental health professional as a result. Snyder reiterated the statements that Jane made regarding E.L.'s conduct, including that Jane said she was "mad" about it. Jane worried about her body as a result of being struck and worried about E.L. repeating the act of putting his fingers in her private parts. When Jane reported that she was afraid, and was asked to specify the reason, she stated that she was afraid that "a monster might get me." Jane suffered from other symptoms of emotional disturbance. She was fearful of flushing the toilet, going to the bathroom by herself because scary creatures might be in the bathroom, had nightmares about monsters, and complained that her throat, stomach, shoulder, and buttocks hurt her. According to Dr. Snyder, similar concerns are frequently reported by children who have been physically and sexually abused.

Additionally, the Division presented a taped interview of the girls conducted by Nicole Slavik on behalf of the Essex County Prosecutor's Office. Slavik testified that she is the multi-disciplinary team coordinator and conducts forensic interviews on behalf of Wynona's House, the agency through which she is employed. She conducts the interviews alone, although other officers involved in the investigation watch through a one-way mirror, and are able to discreetly convey additional areas that they want explored.

During the course of Slavik's interview, using anatomically correct dolls, Jane described E.L.'s behavior, and explained that it happened once in his room on his bed and that it made her feel "mad." While interviewing Lucy, Slavik employed anatomically correct pictures, and Lucy identified both the penis and vagina as a vagina. The child said that once her mother left for work, E.L. would take her into his room and the abuse would begin. As she explained it, he put his "vagina inside my butt." She described in detail other sexual conduct, and told the interviewer that she wanted E.L. to stay away from her family and wanted to stay in foster care.

Rani Steinberg, a licensed clinical social worker at Newark Beth Israel Medical Center, was unable to testify; however, her report was admitted into evidence. She, too, diagnosed Lucy as suffering from post-traumatic stress disorder associated with sexual abuse. She included Lucy's statement that she was frightened about the consequences of her disclosures, and that she was afraid that E.L. could somehow come back to her home and sexually abuse her again.

Lucy had previously reported sexual contact from a maternal uncle in March 2008 when the family resided in Rhode Island. At that juncture, Lucy received a sexual abuse evaluation, assessment, and therapeutic services.

On April 30, 2012, Judge Katz issued a lengthy opinion rendered from the bench. He reviewed, witness by witness, the essentialfacts thatled tohis conclusionthat E.L.had physicallyand sexuallyabused Janeand sexuallyabused Lucy. The judge noted that no proofs had been presented by E.L. or the children's mother to refute the allegations. He also found that the videotaped interviews were not suggestive or coercive in any fashion.

Judge Katz concluded that the Division had proven by a preponderance of the evidence that E.L. had inflicted excessive corporal punishment on Jane, causing the bruising depicted in the photographs. He also determined that the child had been sexually abused, and that her statements were corroborated by disclosures made to the Division's investigator, Slavik, and Snyder. He characterized Snyder's evidence as corroborative, in that Jane was emotionally affected by the sexual abuse, and manifested symptoms and feelings related to it.

The judge also found that E.L. sexually abused Lucy, as corroborated by the unrefuted psychosocial evaluation report establishing that she showed symptoms of post-traumatic stress disorder manifested by generalized fear, anxiety, and flashbacks. The judge specifically stated he was not persuaded by E.L.'s argument that, in the absence of physical corroboration of abuse, Lucy must have fabricated her claims. He relied on Weiner's explanation that the molestation of a child, in the manner she described, would not necessarily be reflected by signs of injury on a child's body.

After the hearing, E.L. was dismissed from future litigation involving Lucy and Jane but was found to have physically and sexually abused them.

On appeal, E.L. contends as follows:

THE TRIAL JUDGE IMPROPERLY DETERMINED THAT THERE WAS CORROBORATING EVIDENCE UNDER N.J.S.A. 9:6-8.46a(4) TO SUPPORT A FINDING THAT E.L. SEXUALLY AND PHYSICALLY ABUSED LUCY AND JANE PURSUANT TO N.J.S.A. 9:6-8.21.

Our role on review is quite limited. 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 v. Cesare, 154 N.J. 394, 411-13 (1998) (internal quotation marks omitted). Our deference is particularly appropriate where the evidence requires a "judge's 'feel of the case' based upon his or her opportunity to see and hear the witnesses." See N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting Cesare, supra, 154 N.J. at 411-13), certif. denied, 190 N.J. 257 (2007).

Appellate courts defer to the factual findings of a trial judge because only he or she has the opportunity to make first-hand judgments about the witnesses and their credibility, and the weight to be accorded to their testimony. See N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 112 (2011). A judge has a feel for the case that can never be reproduced on a review of the record. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010).

The primary concern of Title 9 "is the protection of children, not the culpability of parental conduct." G.S. v. Dep't of Human Servs., 157 N.J. 161, 177 (1999). An abused or neglected child is one who has suffered the unreasonable infliction of harm, or is at substantial risk thereof. See N.J.S.A. 9:6-8.21(c)(4)(b). At a fact-finding hearing, a trial judge's duty is to determine whether the Division has proved abuse or neglect "by a preponderance of the competent, material and relevant evidence." N.J. Div. of Youth & Family Servs. v. C.H., 428 N.J. Super. 40, 62 (App. Div. 2012). "Under the preponderance standard, a litigant must establish that a desired inference is more probable than not. If the evidence is in equipoise, the burden has not been met." Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (internal quotation marks omitted).

Pursuant to N.J.S.A. 9:6-8.46(a)(4), "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." "The most effective types of corroborative evidence may be eyewitness testimony, a confession, an admission or medical or scientific evidence. However, corroborative evidence need not relate directly to the accused. By its nature, corroborative evidence 'need only provide support for the out-of-court statements.'" N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003) (quoting N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002)).

When a child engages in behaviors that the Division's experts testify may be the product of sexual abuse, such testimony provides the corroboration required by the statute. It is clear that the sexual abuse of children is rarely witnessed by others, and those charged with such conduct rarely admit it. See Z.P.R., supra, 351 N.J. Super. at 435. It is for that reason that, over time, the law has accommodated the need to find other indicia of reliability, such as emotional trauma. Id. at 436.

In this case, Jane's statement was corroborated not only by her emotional disturbance and fear of E.L., but also by her sister's statements that similar acts of abuse had been inflicted upon her. Likewise, corroboration as to Lucy's statements is found in her repeated descriptions of the sexual victimization, as well as her behavioral manifestations of stress and trauma.

Certainly, as E.L. suggests, as to Lucy, the child's allegation that she was sexually abused by a family member in Rhode Island makes her knowledge of the specifics of sexual conduct less consequential as corroboration. On the other hand, child "[v]ictims of sexual abuse can suffer an impaired ability to critically evaluate the motives and behavior of others, making them more vulnerable to revictimization." See J.S. v. R.T.H., 155 N.J. 330, 347 (1998). Thus, that she was previously abused, itself, does not undercut the weight that the judge accorded to the other factors that he discussed.

We agree with the trial judge that the Division proved by a preponderance of the evidence that both girls were sexually abused by E.L. Adequate corroboration was presented, including, but not limited to, the emotional and psychological symptoms the girls experienced, the fact each reported similar details, and the fact their stories did not vary in important aspects when repeated. The details of the conduct that they described have a ring of truth. Lucy, at a very young age, has actually engaged in self-injurious behaviors.

We are, therefore, satisfied that, governed by the relevant standards, the trial court's finding of sexual abuse of the girls by E.L. was supported by adequate, substantial, and credible evidence. We are also satisfied that the trial court's finding of physical abuse of Jane was supported by similarly adequate, substantial, and credible evidence.

1 Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

2 Pseudonyms are used to preserve anonymity and for ease of reference.