NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.A.

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NOT FOR PUBLICATION WITHOUT THE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.

T.A.,

Defendant-Appellant.

___________________________________________

IN THE MATTER OF

J.A., M.A., and A.A.,

Minors.

___________________________________________

June 15, 2015

Submitted May 19, 2015 Decided

Before Judges Accurso and Manahan.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-0191-13.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Andrea M. Barilli, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.A., M.A. and A.A. (David Valentin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant, Tyler1, appeals from the trial court's finding that he abused and neglected his girlfriend Carol's children, Jennifer and Molly, in violation of N.J.S.A. 9:6-8.21. Tyler also appeals from an order which required supervised visitation with his son, Aaron. On appeal, Tyler argues the trial court erred in finding abuse and neglect which was not supported by substantial and credible evidence and for ordering supervised visitation notwithstanding the court made no findings of abuse or neglect involving Aaron. We affirm.

The Division of Child Protection and Permanency (the Division) first became involved with Tyler through a referral which disclosed one of Carol's daughters was molested by Tyler. At the time of the referral, Carol was pregnant with Tyler's child, Aaron, but Tyler no longer resided with Carol.

A Division caseworker and a Division psych-evaluator went to Carol's home to investigate the referral, as well as another referral regarding Tyler's domestically violent relationship with a different woman. Jennifer and Molly reported to the caseworker that Tyler often cursed at Carol and during altercations between Carol and Tyler, they would hide in their room, lock the door and cry because they were scared Tyler would hurt their mother. They would also leave and stay with their grandmother if Tyler starting fighting with Carol. Jennifer stated on one occasion she tried defending her mother against Tyler by grabbing his shirt and threatening to leave if he continued to curse at Carol.

Jennifer and Molly also reported to a Division evaluator that, in their presence, Tyler put a knife in front of their mother. They expressed fear that he would stab her. As a result of witnessing these arguments and the "knife incident," Jennifer reported having nightmares of Tyler trying to kill Carol. A Division evaluator opined in a report that this was a symptom of post-traumatic stress following exposure to aggression in the home and an extreme need by Jennifer to protect her mother.

Dr. Jemour Maddux, Psy.D., evaluated Carol, Jennifer and Molly. During the evaluation, Carol mentioned being shoved once by Tyler and that the children were present during arguments between she and Tyler when profanity was used. Jennifer, then six years old, disclosed to Dr. Maddux that she was sexually abused by Tyler. She reported Tyler pulled his underwear down and then placed his penis over her vaginal area over her clothing. Jennifer said Carol walked in and observed Tyler in the same bed with Jennifer, but Jennifer told Carol they were napping together and denied anything inappropriate occurring.

The Division filed a complaint for care and supervision of Jennifer, Molly and Aaron. A fact-finding hearing was held. Tyler did not appear at the hearing nor maintain contact with the Division. During the hearing the children testified to feeling fearful, distressed, and upset at the possibility of Tyler intending to kill their mother.

At the hearing, Dr. Maddux testified Jennifer was reliable in her disclosure of the event because of her spontaneity, demeanor and familiarity with sex. Jennifer quoted Tyler, saying that the abuse "felt good" to him and knew, as a six-year-old child, that Tyler's penis was associated with pleasure for him and he was "doing sex with [Jennifer]." Dr. Maddux further stated Jennifer needed treatment to cope with her psychological suffering and stated the stress Jennifer exhibited was a result of Tyler's violence, which was clinically harmful to Jennifer.

At the hearing's conclusion, the court placed all three children in the physical custody of Carol and restrained Tyler from unsupervised contact. The court found Tyler engaged in conduct constituting abuse and neglect. The court's determination was based upon the fear inflicted upon Jennifer and Molly after observing Tyler verbally argue with and threaten Carol. The court also found that Tyler sexually abused Jennifer

This Court finds that based upon the overwhelming evidence in this case [Tyler] did engage in inappropriate sexual contact with the child, [Jennifer]. Her statements are corroborated by the statements of the mother, as well as the testimony she gave to Dr. Maddux, the interview given to Dr. Maddux that she had information that a typical and normal six-year-old would not have had, and used the words that a normal six-year-old would not have used.

In addition, the mother forcibly entering the bedroom and seeing [Tyler] and [Jennifer] in bed together and [Jennifer's] reaction, crying after the mother had entered the room. All of these signs and actions show this Court that this child's statements were corroborated.

And, therefore, I do make this finding based upon the evidence in this matter and I will enter a finding of abuse and neglect against [Tyler].

Tyler raises the following arguments on appeal

the trial court erred when it found that [JENNIFER] and [MOLLY] were harmed (1) by witnessing arguments between [TYLER] and [CAROL] when [CAROL], herself, admitted that she was an equal in the underlying arguments (2) during the "knife incident" when no competent evidence was presented to support the allegations.

the trial court erred when it found that [TYLER] sexually abused [JENNIFER] because the state presented no corroborative evidence to support a finding and the testimony presented contradicted the stories presented by the various witnesses.

the trial court erred when it imposed visitation restrictions on [TYLER] related to [AARON] when the trial court made no findings of abuse or neglect involving [AARON].

In reviewing the decision of a family court, we "defer to the factual findings of the trial court," N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "'family courts' special jurisdiction and expertise in family matters.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). It is "[o]nly when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (citation omitted). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). It is against these standards that we review the decision of the Family Part judge.

Tyler argues the trial court's finding of abuse and neglect was against the weight of the evidence because the finding was not supported and no actual abuse was observed. We disagree.

The purpose of Title 9 is to protect children from circumstances that threaten their welfare. G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 176 (1999). A child less than eighteen years of age is abused or neglected when the child's

physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, . . . or by any other acts of similarly serious nature requiring the aid of the court[.]

[N.J.S.A. 9:6-8.21(c)(4)(b)].

The burden is on the Division to prove abuse or neglect by a preponderance of the "competent, material and relevant evidence[.]" N.J.S.A. 9:6-8.46(b); N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 22 (2013). Where there is no evidence of actual harm to the child, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." A.L., supra, 213 N.J. at 23 (citing N.J.S.A. 9:6-8.21(c)(4)(b)). While the Division must demonstrate "the probability of present or future harm" to the child, "the court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 182 N.J. 426 (2005).

Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 616 n.14 (1986); N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-36 (App. Div.) (citing D.M.H., supra, 161 N.J. at 383). Nor does harm to the child need to be intentional in order to substantiate a finding of abuse and neglect. See G.S., supra, 157 N.J. at 175 ("A parent or guardian can commit child abuse even though the resulting injury is not intended . . . . The intent of the parent or guardian is irrelevant.").

Here, Tyler argues he never had an argument with Carol which rose beyond the level of a "typical couple's fight." Tyler contends the "knife incident" was not corroborated by either child and the testimony of a five-year-old and six-year-old should not be the basis of the judge's decision.

The court based its decision based upon the totality of the circumstances holding

[The court makes] a finding today against [Tyler]. I do believe that the Division has shown by a preponderance of the evidence that [it] is more likely than not that . . . [Tyler] engaged in acts of domestic violence against [Carol]. And that those acts of domestic violence in the form of verbal arguments and in the form of threatening gestures did pose a risk of actual emotional harm to [Jennifer] and a risk of harm to [Molly].

While the mere witnessing of domestic violence. does not constitute abuse and neglect, S.S., supra, 372 N.J. Super. at 22-23, here the court found, and we agree, that more than mere witnessing took place. Jennifer and Molly reported being afraid, running and hiding in their rooms, staying at their grandmother's home after domestic violence incidents, and repeatedly hearing vulgar language. The children reported being in fear and feeling the need to protect their mother. Dr. Maddux opined as to the children's fear and need for psychological treatment due to witnessing these arguments. Here, predicated upon the substantial, credible testimony of the children and Dr. Maddux, it is clear the children not only witnessed the acts of domestic violence committed by Tyler, they were emotionally harmed by it. As such, the court's finding of abuse and neglect was well supported.

Tyler next argues Jennifer's statements regarding sexual abuse are not reliable as they were not corroborated. N.J.S.A. 9:6-8.46(a)(4) states, "[p]revious 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."

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 . . . . The case law does not require that the evidence be that specific before it can be deemed corroborative of the child's out-of-court statements.

. . . .

The most effective types of corroboration in such cases, of course, are eyewitness testimony, a confession or admissions by the accused, and medical or scientific testimony documenting abuse. In most cases of child sexual abuse, however, there is no direct physical or testimonial evidence. The child victim is often the only eyewitness to the crime, and physical corroboration is rare because the sex offenses committed against children tend to be nonviolent offenses such as petting, exhibitionism, fondling and oral copulation. Physical corroboration may also be unavailable because most children do not resist, either out of ignorance or out of respect for authority. Consequently, in order to give any real effect to the child victim hearsay statute, the corroboration requirement must reasonably be held to include indirect evidence of abuse. Such evidence has included a child victim's precocious knowledge of sexual activity, a semen stain on a child's blanket, a child's nightmares and psychological evidence.

[Div. of Youth & Family Srvs. v. Z.P.R., 351 N.J. Super. 427, 435-36 (App. Div. 2002) (citation omitted).]

"Precocious sexual knowledge" and "abnormal and sexualized behavior [are] corroborative of children's hearsay statements regarding abuse." Id. at 436 (citations omitted). Age-inappropriate behavior is one of the behavioral signs associated with child sexual abuse. State v. J.Q., 130 N.J. 554, 563-64 (1993). In State v. D.R., 214 N.J. Super. 278, 298 (App. Div. 1986), rev'd on other grounds, 109 N.J. 348 (1988), we noted one of the facts militating in favor of the reliability of out-of-court statements of child sex abuse victims is "the child's exhibiting knowledge of sexual practices beyond her reasonably anticipated imagination[.]"

Here, Dr. Maddux attested that Jennifer had knowledge about sex well-beyond what a six-year-old would reasonably know. Jennifer used the phrase "doing sex to me" which Dr. Maddux cited as inappropriately extensive knowledge of sexual activity, or "beyond her reasonably anticipated imagination[.]" Dr. Maddux and Division workers corroborated Jennifer's version of events with Carol, who found Tyler with Jennifer in bed in a locked bedroom. Dr. Maddux found Jennifer's spontaneity in relating what occurred, the detail she provided, and her understanding of sexual phrases and locations demonstrated reliability.

Credibility is appropriate for resolution by the trier of fact who has the "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). We generally will not "engage in an independent assessment of the evidence as if [we] were the court of first instance," State v. Locurto, 157 N.J. 463, 471 (1999), nor will we make conclusions regarding witness credibility. State v. Barone, 147 N.J. 599, 615 (1997). Instead, we generally defer to the trial judge's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). Given our review of Jennifer's testimony and our deference to the court's finding, we perceive no basis to disagree with the determination that her testimony was credible.

Finally, Tyler contends the trial court erred by imposing visitation restrictions upon him related to Aaron since there was no finding of abuse or neglect involving his son. Again, we disagree. The court imposed this restriction because Tyler did not appear at any court proceeding, did not comply with Division requests for drug tests, had another pending family court matter in another county, and made no attempts to visit Aaron prior to the institution of the Title 9 proceedings.

Matters concerning custody and parenting time are accorded substantial deference, and the conclusions of trial judges "are entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976); see also Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958). In light of Tyler's conduct, which constituted abuse and neglect, as well as the deference accorded to the court's parenting time decisions, we are satisfied the court's decision to order supervised visitation was not erroneous.

Affirmed.

1 We have used fictitious names for defendant, the mother and the children.