NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.K., Sr

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NOT FOR PUBLICATION WITHOUT THE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 CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

D.K., Sr.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF J.K., D.K., Jr.

and M.B., minors.

__________________________________

March 2, 2015

Submitted January 6, 2015 - Decided

Before Judges Ostrer and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FN-06-0104-12.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Kristen N. Collar, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.K., D.K., Jr. and M.B. (Karen A. Lodeserto, Designated Counsel, on the brief).

PER CURIAM

Defendant D.K., Sr., appeals from the Family Part's order finding that he sexually abused his step-daughter, M.B. (Melanie),1his daughter, J.K. (Jennifer), and his son, D.K., Jr. (Junior). None of the three children testified at the fact-finding hearing. The court admitted various hearsay statements of the two girls, who asserted that defendant sexually assaulted them. Jennifer also alleged that defendant inappropriately touched Junior. Defendant argues that these statements lacked essential corroboration. Consequently, there was an insufficient basis for the court's finding. Having reviewed defendant's arguments in light of the facts and applicable legal principles, we affirm.

I.

We discern the following facts from the record. Jennifer and Junior are the children of defendant and C.K. (Catherine). Jennifer was born in August 2006, and Junior in November 2007. Melanie was defendant's step-daughter. She was born in April 2002 from a prior relationship of Catherine.

Defendant and Catherine were married in New Jersey in 2005. The following year, they relocated to West Virginia, and lived with defendant's parents. They separated in 2008. Catherine returned to New Jersey, where she lived with her mother and grandmother. During the separation, defendant exercised parenting time with Jennifer and Junior, including overnights, while staying at a nearby hotel, and later, at a studio apartment he acquired in June 2010. Defendant ceased contact with Melanie after the separation.

Melanie first disclosed she was a victim of abuse in November 2011. Jennifer disclosed in early 2012 that both she and her brother had been touched inappropriately by defendant. We consider the evidence relevant to each child.

A. Melanie

According to the screening summary (Screening) that defendant offered into evidence, Melanie's first disclosure occurred during a visit to the local emergency room on November 13, 2011. Melanie was being seen for a rash on her arms and face. According to a nurse's report, described in the Screening, Melanie asserted she was raped, and referred to a bathing incident four years prior involving her step-father. She expressed concern about her half-siblings. She resisted a physical examination, which the nurse found odd for a child who had been abused some time ago. According to a physician's assistant, Catherine appeared relieved her daughter was finally revealing the abuse. The Screening stated

During and [sic] examination, the child mentioned that she was raped. . . . The child told the nurse practitioner that four years ago her step-father went into the tub with her. The child noted her mother divorced him and he doesn't live with them anymore. She was concerned about her 5 year old sister and 3 year old brother who still see him as he is their father. . . . The rash looks like bug bites, as in bed bugs or fleas. The child would not let the staff examine her inner thighs.

. . . Screener called the hospital back and spoke with Dr. T[ ], physician's assistant. . . . The child flipped out when she asked her to take her clothes off. The child said that was rape. She did not want Dr. T[ ] to look at her torso. The child asked the mother to leave the room. The mother seemed relieved to hear the child finally said something about the step-father. The parents were divorced a year ago. The girl said she is afraid he is doing the same thing to her siblings. The mother has been going back and forth in court with the father. The little girl is afraid of DYFS.2 The child never told the mother anything about the step-father touching her inappropriately. The mother took her to counseling, but the child never revealed anything.

In a meeting with Division worker Luz Santiago two days later, Melanie alleged that defendant digitally penetrated her vagina. Santiago's investigation summary, which recounted Melanie's allegations, was admitted in evidence. Santiago also testified regarding the allegations.

According to Santiago, Melanie appeared disheveled, with knotted hair, and an untended, runny nose. She initially declined to talk about the unwelcome touching. Eventually, she disclosed that defendant "touched her in places that made her feel uncomfortable." Declining to verbally detail what happened, she used a teddy bear to demonstrate how defendant would sit next to her on a bed, lift her by her buttocks and touch her there. She alleged it happened in Virginia (although it is undisputed the family resided in West Virginia, not Virginia).

To demonstrate what happened in the bathtub once, Melanie found another stuffed animal, a rabbit, this one with fingers, and placed it in a suitcase along with a doll. Santiago wrote, "[Melanie] stated that she was in the tub naked and [defendant] came in the bathroom and asked her if he could touch her 'private part'." Although Melanie said she refused, defendant allegedly touched her, which Melanie demonstrated by manipulating the fingers of the rabbit so as to touch the area of the vagina of the doll.

Santiago recorded in her investigation summary that Melanie repeated her allegations regarding the two incidents to a prosecutor's office detective.3 At that interview, Melanie used anatomically correct dolls. "She described the incident in the bath tub as [defendant] 'scrunching' her vaginal area with his fingers and his hand."

According to the summary, Catherine told a detective that she once found defendant in the tub with Melanie, confronted him about it, and he claimed it was normal. Catherine stated "she took over bath time since then." According to Catherine, Melanie did not disclose that anything inappropriate occurred at that time.

In Santiago's subsequent visits in December, she found Melanie unbathed and disheveled. Melanie continued to express fear that "something may be happening to her sister [Jennifer]," but she refused to provide details. She also refused to explain why she would not bathe or comb her hair.

In mid-December, Melanie attended an evaluation with Marita Lind, M.D., an assistant professor of pediatrics at the Cares Institute of the School of Osteopathic Medicine at the University of Medicine & Dentistry of New Jersey. Dr. Lind testified she was board certified in child abuse pediatrics. She was permitted to testify as an expert in that field. Her reports were admitted into evidence without objection.4

Dr. Lind stated that Melanie was extremely distraught at the evaluation. A psychologist needed to spend forty-five minutes with her to calm her down. She appeared dirty and sleep-deprived. Dr. Lind noted "stool and debris present in the area of the clitoral hood." Her inattention to personal hygiene was atypical of a girl her age without developmental disabilities. Melanie also had an active case of scabies. Melanie refused to allow Dr. Lind to conduct a full internal examination, but the doctor observed no bruises or abrasions based on an external examination.

Melanie refused to repeat in detail her previous allegations of abuse. However, Dr. Lind reported Melanie's disclosure to a psychiatry resident who was with her

She told her that she told the doctor in the emergency room that something happened to her when she was 4 and lived in West Virginia in a trailer with mommy, [defendant], [defendant's] parents and [Jennifer]. She indicated that it was really hard to talk about and she said, "I don't want to say his name. I can't say."

Dr. Lind told the Division worker that Melanie "may suffer from Post-Traumatic Stress Disorder [(PTSD)]," but did not express that opinion within a reasonable degree of medical certainty, nor did she repeat the opinion in testimony. Dr. Lind testified that Melanie "had a very negative association with any contact to her body, or with undressing," but was unable to ascertain the cause. She stated that Melanie "could have suffered some type of trauma," but declined to opine she was a victim of sexual abuse based on one interaction with her. She stated Melanie's "behavior that day was truly concerning," which was why she recommended additional evaluations and treatment, including a "comprehensive psychological evaluation specific for the concern of child sexual abuse."5

In December 2011, the Division secured defendant's consent to a safety plan that subjected his visitation with Jennifer and Junior to supervision. In January, Catherine reported to Santiago that Melanie was having nightmares. The Division apparently filed a complaint for the care and supervision of Melanie, but the court dismissed the complaint. Our record does not include the complaint, or the reasons for its dismissal.6

B. Jennifer

Jennifer's first disclosure of sexual abuse in March 2012 was preceded by a Division investigation in December, and the first of two evaluations by Dr. Lind. These did not uncover any allegations of abuse. In mid-December the Division received a referral from a school employee that Jennifer was grinding her vaginal area on furniture and masturbating in class. She was a few months past five years old. Like her half-sister, Jennifer had a case of scabies.

During her examination with Dr. Lind in December, she did not disclose that she was touched inappropriately. According to Santiago, who apparently observed the evaluation, Jennifer identified her private areas as "hiney" and "front hiney." Dr. Lind testified that inasmuch as Jennifer was suffering scabies, the doctor "could not determine if she really had sexually reactive behavior at all, or if she was just doing what little kids do when something itches really bad, which is rub it and scratch." The Division deemed the December 2011 incident unfounded for child sexual abuse.

In another investigation summary pertaining to Jennifer, Santiago reported a conversation with Jennifer's maternal grandmother on March 7, 2012, regarding a recent disclosure. "According to MGM, last Thursday [Jennifer] was 'fingering' herself while the family was watching television. . . . [Jennifer] stated that she was playing. When MGM asked her who taught [her] how to play this way, [Jennifer] stated that 'daddy' taught her."

Santiago interviewed Jennifer the same afternoon. She wrote, "Wkr asked [Jennifer] if she got any hugs and kisses that she didn't like and she stated that she didn't. [Jennifer] then stated that 'daddy' plays with her 'down there' and pointed to her vaginal area." Jennifer also alleged that "'daddy used a 'backscratcher' to touch her 'No-No' area because his hand was tired."

Jennifer also disclosed observations involving Junior. "[Jennifer] then stated that she saw 'daddy' doing something bad to [Junior]. Wkr asked [Jennifer] to explain and she stated that 'daddy' took him to [a] bad doctor."7 Jennifer then told Santiago "that 'daddy' touched [Junior] one time on the 'hiney'. Then [Jennifer] stated that [Junior] touched her 'No-No'." Santiago wrote that it was difficult to determine if the incidents occurred on the same day, or on two separate occasions.

Dr. Lind examined Jennifer again in April 2012. Her written evaluation, admitted in evidence, included a history provided by Catherine. Catherine repeated the grandmother's allegations, attributed to Jennifer the assertion that "she sleeps with daddy," and attributed to Junior the confirmation that Jennifer slept in defendant's bed.

In her interview with Jennifer, as described in Dr. Lind's written evaluation and in her testimony, Jennifer disclosed that defendant kissed her on her genitalia, and did the same to her brother. Dr. Lind wrote

I asked her if there was [sic] any grownups that bothered her and she said, "My daddy touches me on my no-no," and she pointed to her genitalia. I said, "What do you call that?" She said, "A heinie." I asked why and she said, "Because he is being bad to me." I said, "Did that happen one time?" She said, "More than one time because." I said, "Can you tell me what you were touched with?" She said something that I was unable to understand. . . . I asked if her dad ever touched anywhere with his mouth and she said, "He kissed my brother on his heinie on the front." I asked, "Did he do that anywhere on you?" She said, "Here," and she pointed to her genitalia. "He called it a heinie." I asked, "What did that feel like?" She said, "Like sad."

Dr. Lind noted that Jennifer had "speech developmental delays." Her physical examination did not reveal any "residual" to the alleged inappropriate contact. She concluded that Jennifer's disclosure "while limited in contextual detail, is concerning for child sexual abuse." She reiterated that conclusion in her testimony, but declined to opine within a reasonable degree of medical certainty that Jennifer was a victim of sexual abuse. Nonetheless, Dr. Lind opined that Jennifer's reports of what defendant did to her and Junior indicated "really age inappropriate sexual knowledge for a child of her age."

C. Junior

Following up on Jennifer's allegations that her father kissed Junior on his "heinie," Santiago testified that she was unable to engage Junior in any meaningful conversation, and he did not disclose any inappropriate contact. Dr. Lind examined Junior in April 2012, and likewise gathered no evidence of assault. She wrote in her report, which was admitted in evidence, "[Junior] did not provide any independent history and his physical examination did not demonstrate any specific residual to inappropriate sexual contact." Nonetheless, she recommended that Junior "be protected from further risk of harm due to the report by his sister that [he] has experienced oral genital contact." Dr. Lind reiterated that view in her testimony.

D. The Defense

In his discussions with Santiago, and in his testimony, defendant denied the allegations that he inappropriately touched his step-daughter, or his two children. In an investigation summary, Santiago reported a conversation with defendant in January 2012. He "stated that the only time he has ever touched their private areas [referring to Melanie and Jennifer] was when he had to put diaper rash cream for [Melanie] and medication for scabies for [Jennifer]."

With respect to the alleged bathtub incident, defendant asserted that Catherine "was the one who placed the children in the bathtub with him years ago." He also alleged that he observed various physical injuries to Jennifer; he photographed them; and reported them to the hotline but no one ever responded. He also asserted that about a year-and-a-half earlier, "he noticed that [Jennifer] was slapping herself between her legs."

In his testimony, defendant repeated that he did not bathe with Melanie; rather, he bathed with Jennifer and Junior, but only because Catherine would put the children in the tub with him when he would take a bath before work. He asserted that for a period of six months, whenever he was in the bath in their home in West Virginia, Catherine would repeatedly enter the bathroom, and place both Jennifer and Junior in the tub with him. In the beginning, Junior was as young as a month old at the time, and Jennifer was a little over a year old. When Catherine entered the bathroom, Melanie would follow. Defendant claimed he protested each time, but Catherine continued the practice. As for how he was able to bathe the two children at the same time, he said, "I held my son in my right arm, and reached out with my left hand . . . and washed my daughter, and got her stomach, and her arms, her legs. And, that was all I could get."

He testified that he observed that Jennifer was touching herself in July 2010 by reaching down into her pull-up and smiling. He thought it was inappropriate and said he reported it to his divorce lawyer, who "just blew it off," and to Catherine, who "just turned around and walked away." He alleged he brought Jennifer to a pediatrician in West Virginia, whose name he could not recall, who allegedly expressed concerns about the scabies, but dismissed Jennifer's touching as normal child development. He claimed to have made a report to DYFS as well. He said he did not follow up because Jennifer was "being herself" after he resumed visitation after the divorce.

He said that when he exercised overnight parenting time with Jennifer and Junior in 2011, the children would each bathe alone, while defendant listened from the next room. He also stated that he preventatively applied scabies medicine on Jennifer and Junior, and "tried to avoid the private area, but still had to treat it."

He denied that Jennifer slept in the bed with him. He said that when she wet her bed, he let her sleep in his bed, but then he slept in a camp cot. He denied kissing the children in their private areas, stating he sometimes "kiss[ed] their arm, or their abdomen, or their hand, or their leg, if they got a boo-boo." He stated that one time, Jennifer lifted up her princess nightgown to allow him to kiss her on her belly-button.

DYFS filed a verified complaint for care and supervision in May 2012.8 The fact-finding hearing was conducted over two days in March 2013. The sole witnesses were Santiago, Dr. Lind, and defendant. The only exhibits admitted in evidence were the Screening, two investigation summaries, and Dr. Lind's three evaluations.

The judge found that defendant abused or neglected all three children. The court reviewed defendant's testimony at length and, based on his demeanor, and the substance of his testimony, found him not to be credible. Defendant lacked specifics or "came up with bizarre responses as to why he did not have those specifics." The court found it implausible that defendant could bathe a one-month-old and fifteen-month-old. It was also unbelievable that he would tolerate his wife continually placing the children in the bath with him, despite his protests, for a six-month period. The judge also rejected defendant's claim that he reported concerns about Jennifer to others; defendant lacked any supporting documentary evidence, and was unable to recall details, such as the name of the pediatrician in West Virginia.

In finding abuse of Melanie, the court relied on Melanie's allegations of inappropriate touching in the bathtub. The judge apparently was unconvinced, based on the minimal details provided, that the touching of Melanie's buttocks was of a sexual or inappropriate nature. The judge conceded that the interval of time between the bathing incident and Melanie's report gave him "pause." However, the court found that Melanie's initial report to Santiago was corroborated by her repetition to a prosecutor's office detective. The judge observed that Melanie did not deny her allegations to Dr. Lind, but simply was unwilling to repeat them. She nonetheless expressed concern for her half-sister. The judge found that Melanie had no reason to lie.

Melanie's allegations were also supported by Catherine's reported assertions that she found defendant in the tub with Melanie and pulled her out, and prohibited him from bathing with her again. The judge also found corroborative Melanie's emotional reaction to being examined by Dr. Lind. The judge found it understandable that Dr. Lind was unwilling to opine that Melanie was a victim, but "[t]he Court has the benefit of a lot of other information that Dr. Lind did not have."

Turning to the allegations pertaining to Jennifer, the court found that Jennifer's report to her maternal grandmother was consistent with her statements to Dr. Lind. The court found the consistency to be corroborative. The judge did not expressly refer to Jennifer's disclosures to Santiago. The court also noted that, according to Dr. Lind, Jennifer had "age-inappropriate knowledge of a sexual nature," although her experiences were "difficult to determine" "without a complete narrative."

The court recognized that the only evidence pertaining to Junior was Jennifer's allegations. However, the court found the fact that there were allegations pertaining to all three children served to corroborate the allegations as to each.

Defendant appeals, and presents the following point and sub-points for our consideration

THE TRIAL COURT'S FINDING OF ABUSE OR NEGLECT WAS NOT SUPPORTED BY COMPETENT, MATERIAL, RELIABLE EVIDENCE.

A. The Trial Court Erred In Relying On [Melanie's] Statements To Authorities, Concern For [Jennifer] And Refusal To Discuss Details Of Abuse As Corroboration Of The Allegations Of Sexual Abuse.

B. The Trial Court Erred In Relying On [Jennifer's] Stat[]ements And Finding That [Jennifer] Had Inappropriate Knowledge Of A Sexual Nature As Proof Of Sexual Abuse.

C. The Trial Court Erred In Relying On [Jennifer's] Allegations, Alone, As Proof Of Sexual Abuse Against [Junior].

II.

We accord deference to the Family Court's fact finding in part because of the court's "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). We shall uphold the court's fact finding if supported by sufficient, substantial and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). We defer to a trial court's fact finding because the judge has had the opportunity to observe witnesses, weigh their credibility, and develop a "feel of the case." Id. at 293 (internal quotation marks and citation omitted). However, we owe no deference to the trial court's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The Division "must prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). The statute 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." N.J.S.A. 9:6-8.46(a)(4). "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." P.W.R., supra, 205 N.J.at 33.

Corroboration may include "eyewitness testimony, a confession, an admission or medical or scientific evidence." N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003). However, corroborative evidence may be circumstantial, as we have recognized that there often is no direct physical or testimonial evidence to support a child's statements. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002). "The corroborative evidence need not relate directly to the alleged abuser, it need only provide support for the out-of-court statements." Ibid. Physical evidence of assault is certainly corroborative, but it is rare "because the sex offenses committed against children tend to be nonviolent offenses such as petting, exhibitionism, fondling and oral copulation." Ibid. (internal quotation marks and citation omitted). Corroboration may also be established by evidence of emotional impacts, such as nightmares and other psychological conditions. Ibid. Cf. State v. D.G., 157 N.J. 112, 125 (1999) (stating that in assessing the trustworthiness of a child's hearsay statement under N.J.R.E. 803(c)(27) as distinct from corroboration of the statement a court may also consider "spontaneity, consistent of repetition, lack of motive to fabricate, the mental state of the declarant, [and] use of terminology unexpected of a child of similar age").

Defendant argues that the court erred in relying on Catherine's observation of defendant and Melanie in the tub, because Catherine's statements were inadmissible hearsay, and were also implausible. We disagree. Defendant's argument that Catherine's statements were inconsistent, or unbelievable, goes to their weight. However, as noted, we defer to the trial court's assessment of the weight to apply to evidence. Once credited, Catherine's report corroborated Melanie's allegation because it confirmed that defendant was naked in the tub with his step-daughter, and had the opportunity to commit the assault that Melanie later disclosed.

We also reject defendant's hearsay argument. We recognize that Catherine's statements regarding defendant bathing with Melanie were objectionable hearsay, embedded in Santiago's investigation summary. N.J.S.A.9:6-8.46(a)(3) allows the admission of Division records "of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding . . . [as] proof of that condition, act, transaction, occurrence or event" if it meets the prerequisites of admission of a business record.9 However, the investigation summary was admissible under N.J.S.A.9:6-8.46(a)(3) only to establish the fact of Catherine's statements; they remained objectionable hearsay if offered for their truth, as they did not meet the requirements of any other hearsay exception.

However, defendant expressly withdrew any objection to the hearsay within the Division's records. Hearsay, even if subject to a well-founded objection, is evidential if no objection is made. State v. Ingenito, 87 N.J.204, 224-25 n.1 (1981) (Schreiber, J., concurring); In re Petagno, 24 N.J. Misc. 279, 283 (Ch. 1946) ("When hearsay evidence is admitted without objection it is to be considered and given its natural probative effect as if it were in law admissible." (citing Diaz v. United States, 223 U.S. 442, 450, 32 S. Ct. 250, 252, 56 L. Ed. 500, 503 (1912))); J.A. Bock, Consideration, in determining facts, of inadmissible hearsay evidence introduced without objection, 79 A.L.R.2d 890 (2014) (stating that "overwhelming weight of authority" supports the rule that inadmissible hearsay may be considered evidential when it enters the record without objection, and it "should be given its natural and logical probative effect"). The probative effect of objectionable hearsay, admitted without objection, depends upon those facts and circumstances surrounding the making of the statement that would affect its trustworthiness.

Defense counsel consented to the admission of the documents into evidence. He initially objected, then withdrew his objection, affirming that the records could be admitted into evidence without limitation. Defendant even offered into evidence the Screening, which included Melanie's hearsay statements to the medical staff, whose statements were then recorded by the screener. Defense counsel therefore waived any objection to the hearsay embedded in the documents.

Moreover, he is estopped from arguing that the court relied on inadmissible hearsay, because the Division obviously relied on his consent to the documents' admission into evidence. Had he taken a contrary position, the Division could have attempted to call Catherine as a witness. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340-41 (2010) (applying invited error doctrine and holding that defendant's failure to object "deprived the Division of the opportunity to overcome any objection and deprived the trial court of the necessity to make a ruling").10

Melanie's allegations of abuse were also corroborated by Melanie's behavior. Santiago's summary recorded a statement from Catherine that Melanie was experiencing nightmares after her disclosures. Her distress over examinations of her own body; her extreme reluctance to discuss her allegations to Dr. Lind; and her poor hygiene, were all corroborative. Dr. Lind questioned whether Melanie may have suffered from PTSD, and experienced other trauma. We recognize that Dr. Lind did not offer an opinion within a reasonable degree of medical certainty that Melanie suffered from PTSD, or in fact experienced trauma. But, the evidence of Melanie's behavior nonetheless supported the court's finding. Melanie's familiarity with the practice of a man's digital penetration of a vagina which she demonstrated twice with the use of toys and dolls evidenced sexual precociousness that also corroborated her hearsay allegations.

Jennifer's allegations are likewise corroborated by her sexual precociousness. Even if one discounts her scratching or grinding in December, her subsequent behavior after the scabies had resolved, including fingering herself while watching television, demonstrated age inappropriate behavior. Her reports of her father's oral contact with her genitalia, and the use of an instrument to touch her, also reflected age-inappropriate sexual knowledge, as Dr. Lind confirmed.

Jennifer and Junior both reportedly asserted that defendant slept in the same bed as Jennifer. Defendant admitted that Jennifer was permitted to sleep in his bed, but insisted that she did so after she wet her bed, and he vacated the bed and slept in the camp cot. Nonetheless, his partial admission is corroborative.

Finally, we address the court's finding as to Junior. He provided no report of abuse. However, his sister Jennifer stated that defendant engaged in oral contact with his genitalia. We recognize that Jennifer's statement, "if uncorroborated" shall not be "sufficient to make a fact finding of abuse or neglect." N.J.S.A. 9:6-8.46(a)(4). However, the court's finding did not rest solely on Jennifer's report. It rested as well on the finding of abuse of Jennifer and Melanie. "[P]roof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child. . . ." N.J.S.A. 9:6-8.46(a)(1).

Defendant's remaining arguments, to the extent we have not addressed them, lack sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E).

Affirmed.

1 We adopt pseudonyms for the children for the convenience of the reader.

2 The record reflects that the Division of Youth and Family Services (DYFS) had been involved with the family as recently as April to June 2011. There were also two child protective services reports dating back to August 2008, not involving sexual abuse allegations, which were deemed unfounded. The record does not include details regarding these prior agency interactions.

3 The investigation summary mentioned a report from the prosecutor's office but it was not introduced at the fact-finding hearing and is not before us.

4 Dr. Lind also prepared reports regarding the allegations pertaining to Jennifer and Junior. Defense counsel initially objected to the admission of the hearsay embedded in the doctor's reports, but when asked by the court to identify the hearsay, he withdrew his objection. Defense counsel then raised an objection to the embedded hearsay in the Screening, and the investigation summaries pertaining to Melanie and Jennifer. He withdrew those objections as well, stating, "I don't think that there's really that much hearsay in the Division's documents."

5 The record does not reflect that this evaluation was performed. However, the children nonetheless received therapy from a mental health professional who reportedly viewed defendant as a predator, and recommended suspension of contact during treatment.

6 Santiago's investigation summary stated that she advised defendant of a "court date and scheduled visit on 1/27/12," but the record discloses no record of such a court appearance.

7 Perhaps this was a reference to a dispute, reflected in the record, between defendant and Catherine over whether Junior should be circumcised.

8 The complaint included allegations regarding Jennifer's disclosures in March 2012, but did not include allegations based on Melanie's disclosures. At a conference with the court in December 2012, the deputy attorney general stated that the complaint should be amended to include allegations regarding Melanie, and appropriate discovery provided to defense counsel. She stated "the Division will be filing the amended Complaint." However, an amended complaint is not included in the record. Nonetheless, the fact-finding hearing proceeded on the basis of the allegations pertaining to all three children.

9 In other words, the judge must find "it was made in the regular course of the business . . . and . . . 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." Ibid.

10 Our conclusion that Catherine's hearsay statements were evidential is not at odds with N.J.S.A. 9:6-8.46(b)(2), which states that "only competent, material and relevant evidence may be admitted" in a fact-finding hearing. Hearsay does not relate to proof's relevance, see N.J.R.E. 401, or competence, see N.J.R.E. 601. Indeed, based on the principle of invited error, inadmissible hearsay was deemed acceptable evidence in M.C. III, supra, 201 N.J. at 342.