J.S. v. R.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-0142-13T3

J.S.,

Plaintiff-Appellant,

v.

R.C.,

Defendant-Respondent.

___________________________________

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

R.C.,

Defendant-Respondent,

and

J.S.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF J.S.,

a Minor.

__________________________________

August 28, 2015

Before Judges Fuentes, Ashrafi and O'Connor.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket Nos. FD-02-250-05 and FN-02-268-10.

Mark P. McAuliffe argued the cause for appellant (McNerney & McAuliffe, attorneys; Mr. McAuliffe, on the brief).

Erin O'Leary, Deputy Attorney General, argued the cause for respondent New Jersey Division of Child Protection and Permanency (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. O'Leary, on the brief).

Todd Wilson, Designated Counsel, argued the cause for minor respondent (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Wilson, on the brief).

Respondent R.C. has not filed a brief.

PER CURIAM

Defendant J.S. (mother) appeals from an order entered on July 25, 2013, in a Title Nine action finding she sexually and emotionally abused her son J.S. (Jim). She also appeals from a non-dissolution1 (FD) order also entered on July 25, 2013 that vacated earlier orders awarding her counsel fees in an earlier action to obtain sole custody of Jim. After carefully reviewing the record and applicable legal principles, we affirm.

I

The pertinent evidence is as follows. The mother and R.C. (father) have a son, Jim,2 who was born in 2003. At that time, Jim's parents were married but separated and ultimately divorced in Massachusetts 2004 or 2005.3 Before their divorce, the mother filed a non-dissolution action in the Family Part in Bergen County. In 2004 the court ordered the parties to share joint legal custody of Jim.

When Jim was nineteen months old, pediatric neurologist Arnold P. Gold, M.D. found he was at the mild end of the autistic spectrum. The father did not accept Dr. Gold's diagnosis, and, over the father's objection, the mother arranged for Jim to receive treatment for this disorder. In 2007, the court awarded the mother sole custody of the child because the parties' differences precluded a successful joint legal custodial arrangement. The father was permitted, however, to have regular parenting time.

In January 2010, Jim told his treating behaviorist he did not want to have parenting time with his father over the upcoming weekend because his father frequently put his finger in his "tushy." The New Jersey Division of Child Protection and Permanency (Division) and the Bergen County Prosecutor's Office investigated the allegation and determined there was no evidence the father was inappropriately touching the child.

Nevertheless, the Division requested and the parents agreed that each would submit to a psychological evaluation. The evaluation revealed that, although Jim had been harmed by his parents' animosity toward each other, the father had not emotionally, physically or sexually abused Jim. However, the evaluator, psychologist Donna LoBiondo, Ph.D., determined the mother had engaged in conduct that was emotionally abusive to Jim.

Specifically, Dr. LoBiondo heard the mother disparage the father in Jim's presence. The child reported his mother made statements about various matters he knew were untrue, leading LoBiondo to conclude the mother was attempting to distort the child's perception of reality. The child also imparted information to LoBiondo that indicated the mother was telling the child the father was abusing him.

Finally, LoBiondo noticed Jim did not exhibit any signs of having autism and recommended he be re-evaluated. A subsequent evaluation revealed that Jim had substantially improved since he was a baby. At the time of the fact-finding hearing, Jim was mainstreamed in school, was not evidencing any behavioral problems, and was an "A" student. Dr. Gold testified his improvement over time had been "remarkable" but did not rescind his original diagnosis. He attributed Jim's improvement to the therapy he began receiving when he was nineteen months old.

Concerned the mother had emotionally abused Jim, in April 2010 the Division filed a verified complaint for the care, custody, and supervision of the child pursuant to N.J.S.A. 9:6-8.21, N.J.S.A. 30:4C-12, and Rule 5:21-1. The court transferred temporary legal custody of the child to the Division and physical custody to the father. The mother was permitted only supervised visitation.

In July 2010, Jim told a therapist that when he lived with his mother he had touched his mother's breasts, and that his mother touched his penis and gave him "wet" kisses. He said his mother's actions made him uncomfortable. The therapist alerted the Division and the Prosecutor's Office of the child's disclosures.

During an interview with the Prosecutor's Office, Jim said no one had ever touched his penis, but later in the interview disclosed that when he lived with his mother, she played with his penis by wiggling it. He claimed she engaged in this behavior in the bathroom approximately three times per week. He also mentioned he never touched a girl's vagina or breasts, but his mother made him touch her breasts, even if he did not want to. He denied seeing his mother's vagina.

In August 2010, the Division requested Anthony V. D'Urso, Psy.D., the Director of the Audrey Hepburn Children's House, to evaluate and assess Jim's allegations of sexual abuse. During D'Urso's interview with the child, Jim spontaneously reached inside of the underwear on a female anatomical doll and said his mother made him touch her vaginal area. Jim also mentioned that his mother pressured him to make allegations against his father.

Although D'Urso concurred with LoBiondo's finding that the mother had emotionally abused the child, he was unable to substantiate sexual abuse. In his November 12, 2010 report he noted Jim's allegations of sexual abuse against his mother had elements that contained idiosyncratic details4 suggesting sexual abuse. However, the allegations also occurred during a change in custody and after multiple forensic interviews. Therefore, he concluded the child's "ability to provide uncontaminated memory is suspect at this time." In December 2010, the Prosecutor's Office closed its criminal investigation and the Division issued a letter stating the allegations of sexual abuse were unfounded. Nevertheless, the mother's visitation continued to be supervised.

In January 2011, the court commenced a fact-finding hearing to determine if the mother had emotionally abused her son. However, the hearing was suspended when Jim told a therapist he recalled times when he and his mother were naked in a bathroom touching each other's private parts. He also remembered there were freckles on his mother's private parts, and that his mother did not have "one of these" and pointed to his penis. He stated his mother touched his "butt and she would touch it in a weird way like she touched my penis." He commented that "it didn't feel really good[;] it felt weird." When asked what jogged his memory, he replied that, during a visit with his mother, she commented about the color of her skin and that caused him to remember the freckles on her private parts. Jim also told a Division caseworker that he remembered touching his mother's vagina and it would "get wet" but not "like when . . . you take a shower."

During an interview conducted by the Prosecutor's Office in May 2011, Jim said that his mother used her hands to touch what he identified as his breasts, as well as his penis and "butt." The touches were either "skin to skin" or above clothing. He described his mother's breasts as having freckles. He said that his mother's vagina felt like skin and that his mother taught him how to touch it. He noticed that an anatomically correct doll in the Prosecutor's Office had hair in the genital area and mentioned his mother did not have any hair. He further stated his mother's vagina was sometimes wet even when she was not coming from the shower.

In June 2011, the Division requested that D'Urso evaluate the new allegations of sexual abuse. D'Urso evaluated Jim on July 1, 2011, August 7, 2011, August 26, 2011, and September 26, 2011. When the fact-finding hearing resumed, D'Urso testified that he deliberately spread the evaluation out over a period of time to see if Jim's comments about sexual abuse had consistency, continuity and detail. D'Urso also thought that by seeing Jim over time he would learn more about how Jim presented information. He discovered Jim had become more clear and explicit over time. At the end of the evaluation, D'Urso concluded the clinical findings supported Jim's allegations of sexual abuse.

As set forth in his October 31, 2011 report, D'Urso noted that over the evaluation period, Jim consistently mentioned most of the incidents of abuse occurred in the bathroom, during which both he and the mother were naked. During these encounters, he was expected to touch his mother's breast and vaginal area and "tickle her butt." He reported that if he superficially touched one of his mother's breasts, she showed her disappointment by telling him that he had to touch the other breast. Jim also mentioned his penis went from being "soft" to going "straight up," and reported feeling uncomfortable or "weird." However, he was comfortable about disclosing what his mother did because it made him feel safe.

D'Urso observed the information Jim imparted had depth and breadth and lacked rote or repetition, suggesting that what the child revealed had not been rehearsed. Also, in each session, Jim provided additional details that were consistent with what he had previously disclosed. Jim admitted he made allegations against his father that were untrue but explained that his mother had been teaching him to lie; he denied that his father pressured him to make allegations against his mother.

D'Urso noted there were differences in Jim's disclosures during the second evaluation that enabled him to clinically substantiate sexual abuse within a reasonable degree of psychological certainty. He stated

While the nature of these disclosures has evolved over time, they remain consistent from the original allegations of fondling. They have not confabulated to other acts or events. [Jim] has been able to describe and demonstrate these acts with different language in different sessions. The capacity of a seven-year-old boy to maintain programmed or influenced stories in the context of this highly litigious case while keeping the central details of the allegations is highly suspect. Therefore, his manner of presentation does not support the notion of programming. . . . [Although Jim] was previously programmed to make allegations against his father[,] he recanted the allegations against his father while in the custody of his mother and under her sole custody. . . . In a self-perceived safer environment, he has continued to identify the sexual conduct that she has engaged in without rote or repetitious script.

Idiosyncratic detail, variation in language, consistency and the ability to show a range of emotion toward his mother, all suggest to this examiner dynamics clinically consistent with child sexual abuse.

The trial court interviewed Jim, who disclosed details of sexual abuse consistent with what he had previously reported. In addition, Jim mentioned, for the first time, that he had touched his mother's breast, vagina and buttocks with his penis.

After the interview, D'Urso testified that the additional details Jim provided were not necessarily inconsistent with any previous statement he had given. D'Urso explained children often provide information about being sexually abused in piecemeal fashion. Over time children reveal information they had not previously disclosed or may have even denied. D'Urso observed

I don't think there's a clinician in the world that would say . . . you're getting the whole story right up front. . . . The fact that a child denies at points in time certain behavior that they later disclose, that's an inconsistency from the perspective of they didn't say it then and they're saying it now. But it doesn't mean it's false because no very rarely does any child tell everything that happened to them in an assessment process. . . .

He determined that, in the final analysis, the additional details Jim disclosed during the court's interview did not alter his opinion.

The trial court concluded there was ample evidence to support a finding that the mother sexually abused her son under N.J.S.A. 9:6-8.21(c)(3) and emotionally abused him under N.J.S.A. 9:6-8.21(c)(4)(b). In making its findings the court indicated that it found D'Urso, the Division's principal witness, highly credible. Although the mother called a number of witnesses, including expert witnesses, the court determined these witnesses either did not impair or materially challenge the Division's evidence or they were not credible or reliable. Significantly, the trial court found the mother was not believable when she denied sexually or emotionally abusing her son, and found Jim credible during his interview with the court.

As for counsel fee issue that was considered during the abuse and neglect fact-finding hearing, on April 3 and August 3, 2007, the court ordered the father to pay the counsel fees the mother had incurred to obtain sole legal custody of the child. In the aggregate, the total counsel fee awarded to the mother was $69,500. On June 15, 2009, the parties entered into a consent order permitting the father to pay $1,153.33 per month until the total fee was paid in full.

In June 2012, the mother moved to enforce the June 15, 2009 consent order. The father cross-moved to vacate the orders that compelled him to pay the mother's counsel fees. Specifically, he sought relief under Rule 4:50-1(c) and (f). He argued the mother had perpetrated a fraud upon the court when she sought sole custody in 2007. On August 2, 2012, the court denied both motions without prejudice, pending the outcome of an evidentiary hearing. Thereafter, the court considered the issues raised in the father's cross motion during the fact-finding hearing.

After the court determined the mother had abused and neglected Jim in violation of N.J.S.A. 9:6-8.21(c)(4)(b) and N.J.S.A. 9:6-8.21(c)(3), the court entered an order on July 25, 2013 granting the father's cross motion to vacate the orders directing him to pay the mother $69,500 in counsel fees. By the time the court had entered the July 25, 2013 order, the father had paid $28,833.25 to the mother. The July 25, 2013 order also compelled the mother to repay the father $28,833.25.

The trial court concluded that the father was entitled to relief under 4:50-1(f). The court reasoned that a grave injustice would occur if the court were to enforce the counsel fee award when the mother had emotionally and sexually abused the child. The court acknowledged it was impossible to determine with precision when the emotional and sexual abuse started but, because the child's disorder abated after he began to live with his father, there was "clear and convincing evidence to support that the original counsel fee awards were secured through manipulation by [mother] and should be vacated."

II

On appeal, the mother raises the following points for our consideration. The mother claims: (1) there is no support in the record for the finding she emotionally and sexually abused the child; (2) the court overlooked the fact the child's play therapy protocol materially alienated him from her and led him to falsely accuse her of sexual abuse; (3) the court overlooked material evidence that contradicted Dr. LoBiondo's findings that the mother emotionally abused the child; (4) the court erred by consolidating the FD matter with a confidential FN proceeding; (5) the court erred by failing to find the father emotionally abused the child; (6) the court considered inadmissible hearsay; and (7) the court erred by considering Dr. Heilbroner's expert's report when deciding the issue of counsel fees.

The purpose of a fact-finding hearing in an abuse or neglect proceeding conducted under Title Nine is to determine whether a child was an abused or neglected child pursuant to N.J.S.A. 9:6-8.44. N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 581-82 (App. Div. 2010). An "abused or neglected child" is defined in N.J.S.A. 9:6-8.21(c). At a fact-finding hearing, the Division must prove by a preponderance of the evidence that there has been an act of abuse or neglect committed by the parent or other person charged with a legal duty of care for the minor child. N.J.S.A. 9:6-8.46. Relevant to the allegations here, an abused and neglected child includes one whose parent commits an act of sexual abuse against the child, see N.J.S.A. 9:6-8.21(c)(3), or impairs a child's emotional condition by unreasonably inflicting harm upon that child, see N.J.S.A. 9:6-8.21(c)(4)(b).

Our scope of review "is to decide whether the findings made could reasonably have been reached on substantial credible evidence present in the record when considering the proofs as a whole, giving due regard to the opportunity of the trial judge to determine credibility." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442-43 (App. Div. 2001) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), certif. denied, 171 N.J. 44 (2002). We defer to the trial court's findings of fact, especially where they are grounded upon credibility determinations. N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88-89 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). Special deference to the family court is accorded because of its "expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998).

However, "[w]here the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). The trial judge's legal conclusions and the application of those conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We conclude from our review of the record there was sufficient credible evidence to support the trial court's finding that the mother both emotionally and sexually abused Jim. Accordingly, we may not disturb the factual findings and legal conclusions of the trial court. See Rova Farms, supra, 65 N.J. at 484. Once "a reviewing court concludes there is satisfactory evidentiary support for the trial court's findings, 'its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal.'" Llewelyn v. Shewchuk, 440 N.J. Super. 207, 213-14 (App. Div. 2015) (citing Beck v. Beck, 86 N.J. 480, 496 (1981)). We therefore affirm the trial court's finding that the mother emotionally and sexually abused Jim.

After carefully considering the record and the briefs, we conclude the mother s remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 In the Family Part, cases concerning child welfare issues under Title Nine are heard under the FN docket. Cases concerning custody, visitation and support, but not the dissolution of a marriage, are heard under the FD docket.

2 The child's name is fictitious to protect his privacy.

3 The date of divorce is not clear. Regardless, we surmise that no relief was granted in the judgment of divorce other than the dissolution of the marriage itself.

4 D'Urso explained that an "idiosyncratic detail" is information a young child is unlikely to possess.