NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.E.

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NOT FOR PUBLICATION WITHOUT THE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,

Plaintiff-Respondent,

v.

M.E.,

Defendant-Appellant,

and

J.R. and B.V.,

Defendants.

____________________________________

IN THE MATTER OF

E.V. and A.R.,

Minors.

___________________________________________________________

January 23, 2014

Submitted January 7, 2014 Decided

Before Judges Fisher, Espinosa and Koblitz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FN-06-30-12.

Joseph E. Krakora, Public Defender, attorney for appellant(Elizabeth H. Smith, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Cynthia J. Schappell, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minors (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

A Title Nine fact-finding hearing in this matter resulted in a determination that one child, five-year old E.V. (Evelyn), was psychologically abused by her mother, defendant M.E. (Melody), as a result of witnessing domestic violence in the home.1 We vacate the order under review because the judge mistakenly relied on Evelyn's uncorroborated out-of-court statement in violation of N.J.S.A. 9:6-8.46(a)(4)2 of an alleged domestic violence event during which the child asserted Melody wielded a knife.

The record reveals that, on July 27, 2011, police investigated an alleged domestic violence incident between Melody and her boyfriend, J.R. (John). The facts suggested that John was attempting to leave, and Melody was preventing him from driving away. The judge presiding over the domestic violence action referred the matter to the Division of Youth and Family Services, which conducted an investigation.3 When interviewed by a caseworker a few days later, Evelyn said she had not witnessed the domestic dispute in question but had witnessed others. She made no mention of Melody having been in possession of a knife during any other encounter.

The Division investigated another allegation of domestic violence on August 18, 2011. Although the Division did not substantiate any abuse at the time, a safety protection plan was adopted that prohibited Melody from having unsupervised contact with either Evelyn or A.R., who was then one year old.4

On August 29, 2011, the Division believed the safety protection plan had been violated and attempted to remove the children from the home. The situation escalated, and John had to be physically restrained while police officers entered the residence to remove the children from the distraught Melody. The children were placed outside the home, and the Division filed this action on August 31, 2011.

In October 2011, Dr. Stephanie V. Lanese evaluated Evelyn at the Division's request. Evelyn related her observations of domestic violence between Melody and John, including Melody's attempt to stab John with a knife. Evelyn had not previously mentioned this knife-wielding incident when interviewed by a Division caseworker in July 2011. And there was no other evidence regarding that alleged incident.

At the fact-finding hearing on March 16, 2012, Dr. Lanese concluded Evelyn was psychologically abused from having witnessed domestic violence, specifically recounting Evelyn's claim that she observed Melody wielding a knife during one such incident. The trial judge found Dr. Lanese credible and provided, among his other findings, the following explanation:

[T]he [c]ourt finds that there's a . . . history of domestic violence based upon [the July 29, 2011 incident]. But, even if the [c]ourt were not to make that finding, certainly, we have the one very serious incident of domestic violence, and I believe I, specifically, asked the doctor, during her examination, was, does it matter how many before you start to experience psychological harm? The doctor said, "No." And, she, specifically, referenced the knife incident. That serious, one-time domestic violence incident, in and of itself, can raise [sic] to the level of psychological harm.

. . . .

Dr. Lanese was able to testify, specifically, as to what this child observed. She was able to testify as to what observations of this child had major impact on this child, specifically, the knife incident is one, and that this child was able to observe it. And then, Dr. Lanese was able to make the causal connection as to observations of that and what type of harm those observations could cause upon this child.

As we have mentioned, the only evidence of the knife-wielding incident came from Dr. Lanese's testimony during which she merely repeated what Evelyn had told her. N.J.S.A. 9:6-8.46(a)(4) recognizes that a child's out-of-court statement may be admissible but "that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." In applying this statute, we have not previously defined the scope of this limitation except to generally observe that corroborative evidence "need only provide support for the out-of-court statements." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002); see also N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003).

Here, although the Division's response to Melody's argument regarding this statutory obstacle is largely devoted to explaining how the judge's ultimate finding is supported by evidence other than the alleged knife-wielding incident, the Division has also argued this incident was corroborated by evidence of other acts of domestic violence. We disagree.

In the absence of a definition of corroboration provided by the statute or its context, we give the word its "generally accepted meaning, according to the approved usage of the language." N.J.S.A. 1:1-1; see also In re State ex rel. A.D., 212 N.J. 200, 217 (2012). The word "corroborate" has been defined as:

To strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence. The testimony of a witness is said to be corroborated when it is shown to correspond with the repre-sentation of some other witnesses, or to comport with some facts otherwise known or established.

[Black's Law Dictionary 344 (6th ed. 1990).]

And "corroborating evidence" has been defined as "[e]vidence supplementary to that already given and tending to strengthen or conform it" or as "[a]dditional evidence of a different character to the same point." Ibid. See also Crowell v. Crowell, 33 N.J. Super. 272, 275-76 (App. Div. 1954); Orens v. Orens, 88 N.J. Eq. 29, 33 (Ch. 1917).

Here, the Division seems to argue that evidence of other acts of domestic violence corroborate Evelyn's out-of-court statement that a knife-wielding act of domestic violence occurred on some other date. That contention represents a view of corroboration that fails to comport with the word's generally understood meaning. We reject the argument that proof of acts of domestic violence on two particular dates "corroborates" that an act of domestic violence occurred on a third date. And even if evidence that a couple engaged in some acts of domestic violence could be said to "corroborate" an act of domestic violence on some other date, that evidence would not corroborate that the domestic violence event included a circumstance not found in the others one participant's use of a deadly weapon. Accord L.A., supra, 357 N.J. Super. at 167 (in which we found a lack of corroboration of a child's out-of-court statements regarding the parties' particular comings and goings on a given date).5

The Division also argues that the judge's finding of abuse and neglect can be sustained by reference to evidence other than the alleged knife-wielding incident. Perhaps that is so. But it is clear particularly due to the judge's repeating of the knife-wielding incident in the course of his oral opinion that the judge was impressed by this alleged event, and it is not at all clear that the judge would have found in favor of the Division if he did not believe that the knife-wielding event occurred.

For these reasons, we vacate the order under review and remand the matter to the trial judge for reconsideration of the evidence in the record without reliance on Evelyn's out-of-court statement that, on one occasion, Melody threatened John with a knife.

Vacated and remanded. We do not retain jurisdiction.

1All names used in this opinion are fictitious.

2N.J.S.A. 9:6-8.46(a)(4) declares 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" (emphasis added).

3The Division was later renamed the Division of Child Protection and Permanency.

4The Division's complaint originally concerned not only Evelyn, whose father is defendant B.V., but also A.R., whose father is John. Ultimately, the hearing that gave rise to the order under review related only to one parent, Melody, and one child, Evelyn.

5In the only other reported case applying N.J.S.A. 9:6.8.46(a)(4), we held that "evidence of age-inappropriate sexual behavior" between the child and others "could provide the necessary corroboration" for an out-of-court statement that the defendant had also engaged in sexual abuse with the child. Z.P.R., supra, 351 N.J. Super. at 434-36. That is so markedly different from the circumstances in question here as to provide little guidance for the disposition of this case.