NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-01932-13T3

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.R.,

Defendant-Appellant.

____________________________

IN THE MATTER OF M.R., A.V.,

and Z.R., minors.

________________________________________________________________

June 26, 2015

Submitted April 13, 2015 Decided

Before Judges Espinosa and Rothstadt.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-74-13.

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

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors M.R., A.V., and Z.R. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant appeals from a finding of abuse and neglect, N.J.S.A. 9:6-8.21(c), based upon an allegation that he sexually abused his girlfriend's ten-year-old daughter, A.V.1 We affirm.

The statutory definition of an "abused or neglected child" includes "a child less than 18 years of age whose parent or guardian, as herein defined, . . . commits or allows to be committed an act of sexual abuse against the child." N.J.S.A. 9:6-8.21(c)(3). As defined in N.J.S.A. 9:6-8.21(a), "[p]arent or guardian" includes "any . . . paramour of a parent, or any person, who has assumed responsibility for the care, custody, or control of a child or upon whom there is a legal duty for such care." It is undisputed that defendant is the paramour of M.E., the mother of A.V.

Title 9 provides for a fact-finding hearing at which the Division of Child Protection and Permanency (the Division) bears the burden of proving, by a preponderance of the "competent, material and relevant evidence," that the child is an abused or neglected child. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 262, 264 (App. Div. 2002); N.J.S.A. 9:6-8.46.

The Division presented the testimony of Donna Pisciotti, a special response unit investigator for the Division; Dr. Gladibel Medina, medical director of the Dorothy B. Hersh Regional Child Protection Center; and Bernice Ruiz, an investigator for the Division. In addition, the following records were admitted in evidence: records from Robert Wood Johnson University Hospital (the Hospital); Dr. Medina's report; the Division's screening summary, investigation summary, and safety assessment and the Division's court report. Defendant did not testify or call any witnesses.

The alleged abuse occurred on the evening of July 14, 2012, when M.E. was at work. Defendant was at home with their daughter, Z.R., and A.V., M.E.'s daughter from a previous relationship. Defendant's teenage daughter, M.R., was out.

At approximately 3:00 a.m. on July 15, 2012, A.V., M.E., and defendant reported to the Hospital's emergency room. A.V. told the attending physician that defendant put his finger in her vagina. The exam revealed that A.V.'s hymen was not intact and that she had some vaginal redness. The doctor stated these findings did not confirm sexual abuse. A.V. was diagnosed with a urinary tract infection and given antibiotics. However, the urine culture was negative. The Hospital contacted the Division to report the allegations of sexual abuse.

Pisciotti received the referral and went to the Hospital, where she interviewed A.V. in private. A.V. stated she had fallen asleep with her sister, Z.R., in her parents'2 bed. Defendant came into the bedroom and told her to go to bed. A.V. "got herself off of the bed, walked into her room, got into her bed." A few minutes later, defendant entered her room, "kneeled down at the side of her bed and began touching her." He smelled of alcohol. A.V. said defendant put his hand up her shorts and started touching her vaginal area. She felt defendant's hand go inside of her and he "moved his hand around." When asked how long this took place, A.V. stated "it was not quick and that it hurt." A.V. said that defendant thought she was sleeping, but she was not. She continued to lie still out of fear he might do something else. A.V. waited until defendant left the room, then went to get the phone, called her mother and told her what had happened. M.E. told her to give the phone to defendant. A.V. said defendant "lied about it."

Pisciotti said A.V. was "very emotional" and "crying" while recounting the incident. A.V. denied any prior incidents of this nature occurring with defendant.

Pisciotti then interviewed defendant. He stated he was outside with a friend and drank five or six beers. When he went inside, he told the children to go to bed. He believed he walked A.V. to her room by holding her arm. After she got in bed and tucked herself in, he went to his room and watched television. A little while later, defendant heard A.V. crying on the phone to her mother. After getting on the phone with M.E. and hearing A.V.'s allegations, defendant denied anything occurred and suggested they take A.V. to the hospital. Defendant and A.V. picked up M.E. from work and went to the Hospital.

When Pisciotti asked defendant whether he touched A.V., he told her "when he had told her to go to bed that maybe he helped her to bed. That maybe he lifted her leg onto the bed and that maybe in the process of lifting her leg, he maybe touched her." Defendant did not, however, explain how he might have touched her.

Both defendant and M.E. told Pisciotti that A.V. did not have a history of "lying or inventing things." Defendant said there were no prior conflicts between him and A.V. and he did not know why she would fabricate these accusations.

When Pisciotti asked M.E. exactly what A.V. disclosed to her, M.E. replied her daughter said defendant "put his finger inside of her and that it hurt." M.E. expressed concern that A.V. may have been dreaming, but Pisciotti said A.V. "made it very clear to her mother she was not dreaming the whole thing[,] that it actually happened."

The parties stipulated to the qualifications of Dr. Medina as an expert in pediatrics and child abuse and neglect. Dr. Medina examined A.V. on August 3, 2012, and described her as fearful, shy, and embarrassed. A.V. did not want to have another anogenital exam because she was embarrassed when that was done at the Hospital. Dr. Medina stated it was unnecessary to conduct another exam because M.E. reported the prior exam and A.V. did not have any anogenital problems at the time Dr. Medina saw her.

When asked about the incident with defendant, A.V. told Dr. Medina she was asleep in her mother's bedroom and "assumed" defendant moved her to her own bed. She woke up when she felt defendant touch her upper thigh, near her genital area. He smelled of alcohol and she became afraid. A.V. then went to the bathroom. It hurt her when she urinated. Dr. Medina testified, "Then she told me that because she felt the pain, he must have touched her in her private he must have touched it. And when I asked what she was referring to with it, she said her front genital area and she was pointing to it."

A.V. told Dr. Medina that after defendant went to sleep on his bed, she sneaked into her mother's room "to grab a phone because she was afraid about him doing something worse to her." She called her mother and asked her to come home.

A.V. told Dr. Medina she still felt pain when she got to the hospital. The pain was gone by the time she returned home that night. She had not experienced trouble urinating before or had any other genital problems. She reported having nightmares for a couple of days after the incident. She denied that defendant ever digitally penetrated her.

As part of the evaluation, Dr. Medina also spoke with M.E. regarding "[h]er concerns about what had happened to her daughter and her questions" and to "gather a medical history for [A.V.]." M.E. reported that A.V. had no significant health issues, no behavioral problems, and no prior anogenital problems. M.E. said on the night of the incident, she received a call at work from A.V. asking her to come home because defendant "did something bad to her and was smelling like alcohol and she was worried." M.E. asked A.V. to put defendant on the phone. M.E. told defendant to pick her up at her job "so that she could get him out of the house to make sure nothing else happened to [A.V.]." Defendant picked up M.E. and then drove M.E. and A.V. to the Hospital for an evaluation. M.E. told Dr. Medina that if defendant were allowed back in the home, she would not work the night shift any more because she would be concerned that a similar incident would occur.

Dr. Medina opined that A.V.'s nightmares and the acute onset of painful urination were "symptoms that could be related to somebody [who has] had an inappropriate contact." She testified painful urination could not be caused by someone touching the top of A.V.'s leg, but a touching of the genital area could do so.

Ruiz testified concerning her interviews of M.E., A.V., and Z.R. at M.E.'s home. Ruiz stated that M.E. said "she wanted justice" for A.V. but also wanted to be fair to defendant if he did not harm A.V. M.E. explained that A.V. was a truthful child but she still had questions regarding A.V.'s story. She questioned whether defendant would have been able to fit his hand up A.V.'s shorts since they were "very tight." M.E. stated A.V. never complained of pain in her vaginal area prior to this incident. M.E. also expressed concern about how she would manage her finances without defendant's assistance. Ruiz spoke briefly with A.V., but did not discuss the incident with her as the matter was still being investigated by the prosecutor's office.3

Ruiz interviewed defendant and asked him to recount the events of July 14 and 15, 2012. Defendant reported that he was drinking beer with an acquaintance in defendant's backyard while A.V. and Z.R. were in the house. After drinking five or six beers, defendant entered the house and found the two girls asleep in his bed. He stated he either picked up A.V. or led her to her room and then went to sleep. He was awakened by A.V. "crying and passing him the telephone and [M.E.] on the other end accusing him of touching her daughter." Although he said did not remember if he helped A.V. into her bed or not, he also said he may have unintentionally touched her while lifting her leg into the bed. He stated he did not remember the incident, explaining that he may have blacked out since he had blacked out from drinking alcohol in the past.4 Defendant also told Ruiz that A.V. "was an honest child and she didn't lie. And that if she had said that, he he must have done it." Ruiz found defendant's comments concerning because he did not "confirm or deny the allegation."

On June 11, 2013, while its decision on the fact finding hearing was still pending, the trial court held a compliance review hearing. The court report prepared by the Division for the hearing, which was entered into evidence, contained the May 13, 2013 discharge summary from A.V.'s therapist at Catholic Charities, where A.V. attended therapy sessions from January 17 through May 13, 2013. The therapist's report stated in part

According to the [Division's] report, [A.V.] reported that her stepfather was drunk and that he came into her room and touched her vaginal area under her shorts allegedly penetrating her while she was sleeping. [A.V.] then called her mother [M.E.], who was at work, and told her about her stepfather touching her and that her vagina was hurting. Both [M.E.] and [defendant], stepfather, took [A.V.] to the hospital for the pain and it was determined that she had a urinary tract infection unrelated to the allegations of sexual abuse. Sexual abuse was substantiated. However, during the assessment [A.V.] verbalized a different story. [A.V.] stated that her stepfather was drunk and that he walked into her room while she was sleeping. [A.V.] stated that she really was awake but her eyes were closed. She added that he was standing over her and that he touched the top of her leg area near her vagina. [A.V.] denied to this clinician that her stepfather put his hands under her shorts or touched/penetrated her vagina. [A.V.] expressed that she went to the bathroom afterwards and felt burning, which was due to the urinary tract infection, and that she got scared and called her mother. [A.V.] verbalized that she was not sure what happened when her stepfather touched her.

The report further stated the clinician

"discussed with [A.V.] numerous times how victims may feel the need to recant their story due to family pressure or fear of the consequences. [A.V.] verbalized that she was sure this was not the case and repeated that she was not sure if it was sexual abuse or an accident that was misinterpreted."

Defense counsel brought the Catholic Charities report to the court's attention at the compliance hearing, but did not make a motion, formally or orally, to reopen the record. The following exchange took place

[DEFENSE COUNSEL]: The fact finding hearing was replete with inconsistencies. As a matter of fact in this report today from Catholic Charities --

THE COURT: We're not revisiting that are we?

[DEFENSE COUNSEL]: No. But what I'm saying is, Judge, it says here [A.V.] denies to this clinician that [defendant] put his hands under her shorts or penetrated her vagina.

THE COURT: I'm not reopening the record.

[DEFENSE COUNSEL]: Okay. Well I'm reading from something that's in evidence today, Judge, for purposes of this proceeding.

THE COURT: Of this proceeding. Today.

The trial judge entered an order in the fact-finding hearing approximately one month later. She found the Division had proven by a preponderance of the evidence that defendant sexually abused A.V. and set forth her reasons in a written opinion.

The court explained that while there was no physical evidence of abuse, such lack of evidence "is not uncommon." The court noted that both defendant and M.E. reported that A.V. does not lie and had no motive to lie. Defendant had even said, "if [A.V.]. stated that she had been touched, then it must have happened." The court pointed out that the three statements A.V. made contemporaneous to the incident were consistent. The court concluded,

[A]ll of the factors the complaint being contemporaneous with the pain, the fear expressed by the child, the consistency of her story and her reputation for telling the truth lead to the conclusion that the child was sexually assaulted within the meaning of the statute and the Division has met its burden.

The court further noted

[A.V.] has presented, through interviews with the Division at the hospital on July 15, 2012, hospital staff on July 15, 2012, and to Dr. Medina on August 3, 2012, with two dramatically different versions of what occurred on July 14-15, 2012. The intervening interval between those interviews is relevant.

. . . .

. . . It was only after the passage of approximately two and one-half weeks that her version changed to be consistent with [defendant's] version; a version he proposed although he claimed not to have any memory of because he alleged to have been under the influence of alcohol and may have passed out . . . . Throughout the course of events, while M.E. was very concerned for her daughter and wanted justice for her, she was also very concerned for her financial circumstances and the fact that she relied on [defendant] to assist her financially. This certainly explains the different version of the events by [A.V.] coupled with the minimization of the harm caused by [defendant].

On February 25, 2014, defendant filed a motion to reverse the trial court's decision and remand the matter for the trial court to take testimony from A.V.'s therapist and conduct an in camera interview of A.V. regarding A.V.'s recantation of her allegation of sexual abuse. We denied the motion.

Defendant presents the following issues for our consideration in this appeal

POINT I

THE TRIAL COURT ERRED WHEN IT DID NOT RE-OPEN THE FACT FINDING HEARING FOR AN IN CAMERA INTERVIEW OF A.V. AND TESTIMONY FROM A.V.'S THERAPIST AFTER IT LEARNED THAT A.V., UPON WHOSE STATEMENTS THE TRIAL COURT HAD RELIED TO MAKE ITS FINDINGS, HAD RECANTED HER ALLEGATION OF SEXUAL ABUSE WELL BEFORE THE TRIAL COURT HAD EVEN REACHED A DECISION IN THE TITLE 9 ABUSE/NEGLECT FACT FINDING THAT AROSE FROM THAT ALLEGATION.

POINT II

THE TRIAL COURT'S FINDINGS THAT J.R. SEXUALLY ABUSED A.V. ONCE WERE NOT SUPPORTED BY THE EVIDENCE ON THE RECORD.

POINT III

TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO EXPLICITLY MOVE BEFORE THE TRIAL COURT TO RE-OPEN THE FACT FINDING HEARING FOR AN IN CAMERA INTERVIEW OF A.V. AND TESTIMONY FROM A.V.'S THERAPIST, AFTER THE TRIAL COURT HAD BEEN MADE AWARE THAT A.V. HAD RECANTED HER ALLEGATION OF SEXUAL ABUSE WELL BEFORE THE TRIAL COURT HAD EVEN REACHED A DECISION REGARDING THE TITLE 9 ABUSE/NEGLECT ALLEGATIONS ARISING FROM THAT ALLEGATION.

We have reviewed these arguments in light of the record and applicable legal principles and conclude they lack merit.

I.

In Point I, defendant argues the trial court should have reopened the record to take testimony from A.V. and her therapist after learning of the alleged recantation at the June compliance review hearing. Defendant further argues the trial court erred because, as a result of this failure, the record contains multiple accounts of A.V.'s initial allegations, but only account of her recantation. These arguments lack merit.

When a motion for a new trial is made under R. 4:49-1 to produce additional evidence, such a motion should be granted when that evidence would probably alter the judgment and by due diligence could not have been discovered before the court announced its decision . . . . Under that rule it is well established that it must appear that the evidence would probably have changed the result, that it was unobtainable by the exercise of due diligence for use at the trial, and that the evidence was not merely cumulative.

[Quick Chek Food Stores v. Twp. Of Springfield, 83 N.J. 438, 445 (1980).]

A motion to reopen the record is "addressed to the sound discretion of the trial court and will not be disturbed unless that discretion has been clearly abused." Id. at 445-46. However, because defendant did not ask the court to reopen the record, the argument raised in Point I is reviewed for plain error. R. 2:10-2.

Even if a motion to reopen the evidence had been made in this case, the trial judge would have acted well within her discretion to deny the motion because the evidence sought to be introduced was both cumulative and lacked the capacity to "probably . . . change[] the result." Quick Chek, supra, 83 N.J. at 445.

The version of events A.V. recounted to her therapist at Catholic Charities was consistent with the account she gave to Dr. Medina. A.V. told Dr. Medina that defendant touched her upper thigh, near her genital area. She did not explicitly state she experienced defendant touching her genital area; she assumed he must have done so because she experienced pain when urinating. Significantly, the trial judge viewed the version A.V. gave to Dr. Medina as "dramatically different" from the version of events she gave to her mother, the Hospital, and the Division. The trial judge had the benefit of knowing A.V. gave inconsistent statements and explained her assessment of the facts in light of this inconsistency. The reasons she gave for finding the sexual abuse occurred are not undermined by the details the therapist reported. Therefore, the record fails to show that this cumulative evidence "would probably have changed the result." Ibid. The failure to sua sponte reopen the record did not constitute plain error.

We also reject defendant's argument that there was error because there were multiple accounts of A.V.'s initial allegations as opposed to only one account of her recantation. The judge's decision reflects a thoughtful appraisal of the evidence, not a mere counting of how many versions supported the allegations or recanted them.

II.

In Point II, defendant argues the trial court's findings are not supported by credible evidence in the record. He argues the trial court erred in admitting two of A.V.'s hearsay statements and that it is improper to base a finding of abuse on a child's hearsay statements alone. These arguments also lack merit.

A.

An appellate court has "a strictly limited standard of review from the fact-findings of the Family Part judge." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div. 2010). Due deference is owed "to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). This court may not "second-guess or substitute [its] judgment for that of the family court," so long as "the record contains substantial and credible evidence to support [its] decision." Id. at 448-49. A family court's findings of fact should be disturbed only if they "are so wide of the mark that [the appellate court's] intervention is necessary to correct an injustice." Id. at 448 (citation and internal quotation marks omitted).

Under N.J.S.A. 9:6-8.46(a)(4), an uncorroborated statement by a child is admissible in an abuse and neglect proceeding. However, "an uncorroborated statement . . . is not alone 'sufficient to make a fact finding of abuse or neglect.'" N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super. 61, 66-67 (App. Div. 2014) (quoting N.J.S.A. 9:6-8.46(a)(4)). "Stated another way, a child's hearsay statement may be admitted into evidence, but may not be the sole basis for a finding of abuse or neglect." Ibid. (citation and internal quotation marks omitted). Corroborative evidence is required. Ibid.

Generally, "[t]he most effective types of corroborative evidence may be 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). "It would be a rare case where evidence could be produced that would directly corroborate the specific allegation of abuse between the child and the perpetrator . . . ." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 435-36 (App. Div. 2002) (noting that in most child sex abuse cases, there is no physical evidence and the child victim is the only eye witness). Corroborative evidence in child sexual abuse cases "need not be direct so long as it provides some support for the out-of-court statements." J.A., supra, 436 N.J. Super. at 67. Moreover, "[t]he corroborative evidence need not relate directly to the alleged abuser, it need only provide support for the out-of-court statements." Z.P.R., supra, 351 N.J. Super. at 436.

A.V.'s hearsay statements here were amply supported by corroborating evidence, which included defendant's own equivocal statements and his admission she had no motive to fabricate the allegation. See N.J. Div. of Child Prot. & Permanency v. M.C., 435 N.J. Super. 405, 424 (App. Div. 2014) (finding defendant's admissions as to some of the details of his children's accusations were corroborative of their statements), certif. granted, 220 N.J. 41 (2014). Both M.E. and Pisciotti reported that, immediately after the incident, A.V. was fearful and very upset. Although inconclusive, the physical exam revealed A.V. had redness in her vaginal area and her hymen was not intact. In addition, the court noted A.V.'s acute onset of pain, the child's fear, and the child's subsequent nightmares. As the urine culture revealed, A.V.'s complaint of painful urination was not caused by a urinary tract infection. Dr. Medina opined that, in light of the negative urine culture, the episode of painful urination "supports the possibility of minor contact trauma of the genital tissue." Dr. Medina also stated A.V.'s nightmares and the acute onset of painful urination were "symptoms that could be related to" inappropriate contact.

We conclude the trial judge's finding of abuse had adequate support in the record and is entitled to our deference.

B.

Although defendant now challenges the admission of A.V.'s hearsay statements, we note that defense counsel expressly consented to the admission of all the documents containing A.V.'s statements into evidence. We therefore review this argument for plain error, R. 2:10-2, and conclude it lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following brief comments.

Rule 5:12-4(d) provides that, in an abuse and neglect proceeding, the Division "shall be permitted to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants. Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." Hearsay statements contained in reports by Dr. Medina, a professional consultant, and by Pisciotti and Ruiz fell within the scope of this rule. In addition, statements made by A.V. to her mother while she was upset immediately following the incident and to hospital staff fell within exceptions to the hearsay rule. See N.J.R.E. 803(c)(2) (excited utterance); State v. R.K., 220 N.J. 444, 445 (2015) (fresh-complaint doctrine); 803(c)(4)(statement for purpose of medical diagnosis or treatment).

III.

Finally, defendant argues "[t]rial counsel was ineffective for failing to make a formal request . . . through either a written or oral motion to have the fact finding hearing re-opened." We disagree.

Because a finding of abuse and neglect subjects defendant to having his name entered on the Central Registry, N.J.S.A. 9:6-8.11, he faced a consequence of magnitude in the fact-finding hearing and was entitled to the effective assistance of counsel. C.f. Pasqua v. Council, 186 N.J. 127, 147-48 (2006) (citing Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971)). The standard to be applied to this argument is that set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). See N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 307-09 (2007) (finding the Strickland/Fritz standard appropriate in termination of parental rights cases). The test is as follows

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

As we have discussed, if a motion to reopen the record had been made, a denial of the motion would have been well within the trial judge's discretion. The record already included A.V.'s retreat from her initial allegation, which the trial judge duly considered. Moreover, trial counsel appropriately raised the information in the therapy report for the court's use in determining services in the compliance hearing. Under these circumstances, it cannot be said that the failure to move to reopen the record entailed constitutionally deficient performance. In addition, because the evidence in question was unlikely to change the result, the second prong of the Strickland-Fritz test was not satisfied here.

Affirmed.

1 The Division sought a finding of abuse and neglect pursuant to N.J.S.A. 9:6-8.21(c)(3) and N.J.S.A. 9:6-8.21(c)(4)(b). The neglect charge was based on the allegation that A.V. and her sister, Z.R., were left unsupervised on the date of the incident. The court dismissed this charge, finding the Division failed to satisfy its burden of proof.

2 A.V. refers to defendant as her stepfather.

3 Pisciotti contacted the Middlesex County Prosecutor's Office (MCPO) before she went to the Hospital. However, Pisciotti stated M.E. did not want to press charges against defendant because she relied on him financially. As a result, the MCPO declined to prosecute defendant.

4 However, when questioned by Pisciotti, defendant denied he was intoxicated while he was driving.