NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.S.T.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

J.S.T.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF A.R., F.T.

and J.T., Jr., minors.

_________________________________

June 16, 2015

Argued November 5, 2014 Decided

Before Judges Messano, Ostrer and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-196-12.

Ingrid A. Enriquez, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Enriquez, on the briefs).

Melissa Medoway, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney;(Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jill Stephens-Flores, Deputy Attorney General, on the brief).

Christopher A. Huling, Designated Counsel, argued the cause for minors A.R., F.T. and J.T., Jr. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Huling, on the brief).

PER CURIAM

J.S.T. (Josue),2 appeals from the Family Part's May 9, 2012, fact-finding order, determining that he sexually abused his step-daughter A.R., (Abby), born in November 1994.3 Josue raises two issues. First, he contends the trial court erred in admitting the expert report and testimony of a psychologist retained by the Division. He argues the report was "prepared . . . for the making of an order of disposition" and "may not be furnished to the court prior to the completion of a fact-finding hearing." N.J.S.A. 9:6-47(b). Second, he contends Abby's hearsay statements were not corroborated pursuant to N.J.S.A. 9:6-8.46(a)(4).

Having considered Josue's arguments in light of the record and applicable principles of law, we affirm the trial court's finding. Although we agree that the report should not have been admitted into evidence, we conclude the error was not harmful.

I.

The Division's witnesses at the fact-finding hearing in April and May 2012 were a Division caseworker, Orlando Ospina; and the Division's expert, Daniel Bromberg, Ph.D. Maria testified on her own behalf. Josue did not. Ospina presented Abby's allegations of abuse, and other aspects of the Division's investigation. The court was presented with transcripts of Abby's prior statements, as well as a video-recording of one of Abby's statements.4 The trial judge recounted the relevant facts at length. We provide the following summary, based on the trial record.

During a counseling session in April 2008, when Abby was thirteen years old, she disclosed two incidents involving Josue. According to the complaint, the two incidents occurred when Abby was nine and eleven years old. Abby later recanted; according to Division records, she "stated that she felt bad lying but did not want to go home with her mother." The Division deemed the allegations unfounded. However, the Division renewed its investigation in March 2011. The Division was investigating a referral that Abby's aunt had been mistreating her. Division workers asked Abby about her prior allegations. Abby denied recanting them and affirmed that the incidents with Josue took place. The Division substantiated the allegations in October 2011, leading to the complaint, as well as the trial that is the subject of this appeal.

In the first incident, Abby contended that Josue entered her bed, partly undressed her, and put his penis on her buttocks. She felt something wet and sticky. Although she did not see his penis, she saw his pants down. She yelled for her mother, and Josue ran to the bathroom. Abby told her mother what had happened, but her mother's only response was that she would speak to Josue.

The second incident occurred when Abby was eleven years old. She awoke to the sight of Josue hovering over her. She yelled, and Josue ran into a closet. Her mother responded and found Josue in the closet. He told Maria he did not know why he was in the closet. Maria recalled him being intoxicated.

Abby was living with her aunt at the time of her 2008 disclosures. After a period of discord between Abby and her mother, Abby had moved in with her aunt in December 2007, and remained there until early 2011. Her relationship with her aunt was problematic as well. In 2011, Abby alleged her aunt used excessive corporal punishment, but the Division deemed the allegation unfounded. Abby returned to her mother's and step-father's home in March 2011. The household included her mother and Josue, Maria's and Josue's daughter, F.T. (Flora), born in 2003, and son, J.T. (Juan), born in 2010.

Josue first met Abby when she was seven years old, and moved in with Abby and her mother when Abby was eight. The household was tumultuous prior to Abby's move to her aunt's house, as evidenced by multiple reports of police involvement at the home. Josue committed acts of domestic violence, leading Maria to obtain a restraining order against him. He was often intoxicated. Maria alleged, in a 2008 affidavit related to one police intervention, that Josue attempted to harm himself with a knife in early 2008. She also alleged that Josue insisted upon sleeping with their four-year-old daughter, which she prevented. According to Maria, Josue said at the time that he did not care if he was arrested or deported. Maria told Division workers that Josue once hit Abby with a closed fist on Abby's head when she was ten years old, and Maria told Josue that he was not allowed to hit her daughter.

Maria's statements regarding Abby's allegations varied. Maria consistently stated, in pre-trial interviews and trial testimony, that she found Josue in the closet after the second incident. However, Maria varied the details. In pre-trial statements, Maria stated that when she found her husband in the closet, he was intoxicated, and could not explain why he was there. Maria contended pre-trial he was too drunk to know what he was doing. At trial, she testified that he told her he was in the closet to look for tools. "He said, [']I have my tools in there and I was just looking in there to make sure that . . . all my things were safe.[']"

In her interview with Dr. Bromberg, Maria recalled the incident in which Abby screamed and alleged Josue engaged in sexual contact. She told Dr. Bromberg she questioned Josue, who denied Abby's allegations and asserted he was in the shower. Maria told Dr. Bromberg that Abby fabricated the allegations to ruin her life. On the other hand, at trial, Maria's testimony was inconsistent. At one point, Maria denied that Abby told her that she was sexually abused prior to her 2008 disclosures. However, she also appeared to conflate the two incidents. In discussing the "closet incident," she said she first ran to Abby, hugged her, and ran her hand down to her buttocks, to see if anything was there apparently in response to Abby's allegation that he had ejaculated near her buttocks, which involved the first incident. Maria also testified that in 2008, she believed Abby's allegations and took steps to protect Flora from Josue. Maria admitted that Abby began acting out after the "closet incident," and her grades dropped. Her behavioral issues led to her move to her aunt's home. She also admitted acts of domestic violence that led her to live separately from Josue between May 2008 and August 2010, around the time their son was born.

Abby reported the essential details of the two reported incidents during her 2011 evaluation by Dr. Bromberg. However, she also disclosed to Dr. Bromberg that there were two additional incidents between the two she previously reported. She told him that one month after the first incident, a second similar incident occurred. A third similar incident occurred, but Abby could not pinpoint the date. The fourth incident was the "closet incident." A fifth incident occurred when Abby was twelve years old. Josue allegedly placed his penis near her buttocks and then moved it toward her vaginal area. When she moved, Josue retreated to the bathroom. Abby told Dr. Bromberg she did not report that incident to her mother because it would have been "pointless."

Abby reported that she experienced anger and self-hatred. She also cut herself between the ages of twelve and fourteen. She blamed herself for moving back into the family home in 2011 where Josue resided. She also slept with a spoon to protect herself from Josue after the first incident. She reported she had difficulty concentrating in school. She also said she trusted few people.

Dr. Bromberg obtained valid responses to one of two psychological tests. According to the Personality Assessment Inventory-Adolescent (PAI-A), Abby had low self-esteem "a stable, negative self-evaluation" and she was "probably self-critical" and experienced more "self-doubt than is obvious to others." However, Dr. Bromberg concluded she under-responded or was "faking good" to the Trauma Symptom Checklist for Children; as a result, Dr. Bromberg was unable to utilize that test's results. Dr. Bromberg noted that Abby indicated emotional distance from Josue, referring to him as "'[her] mom's husband.'"

Dr. Bromberg opined in his written report that Abby's allegations were credible. However, the court sustained an objection to a question at trial that sought to elicit his opinion whether Josue engaged in sexual behavior with Abby. The court ruled that the inquiry went to the ultimate question of the hearing.

Nonetheless, Dr. Bromberg was permitted to testify regarding matters "of concern" to him after his evaluations. Dr. Bromberg opined that Josue's statement that he abstained from alcohol after Abby returned to the home in 2011 reflected a recognition on his part that he may well have engaged in inappropriate behavior when intoxicated. He asserted that Abby was consistent in her main allegations, and refrained from embellishing or adding details. She reported emotional or behavioral symptoms consistent with the aftermath of sexual abuse. Dr. Bromberg opined that Abby's recantation was the result of lack of support of her allegations. He also noted that Abby expressed emotional distance from Josue, and Josue did the same toward Abby. Dr. Bromberg also opined the Josue's repeated use of alcohol to the point of intoxication was a relevant factor, inasmuch as alcohol reduces inhibitions that might otherwise prevent someone from acting on sexual impulses.

In interviews with the Division workers, Josue consistently denied that he engaged in any sexual contact with Abby. In connection with the second alleged incident, he admitted to Dr. Bromberg that he hid in the closet after waking Abby. He asserted he had entered the apartment late one night, slammed the door, and Abby awoke screaming. He claimed he was intoxicated and hid in the closet so as not to alarm her. He also stated that he stopped drinking when Abby returned to the home in 2011 because Abby "said whenever I drink I touch her." Based on psychological testing, Dr. Bromberg opined that Josue lacked empathy for children. Dr. Bromberg also asserted, "In addition to the probability that [Josue] had previously engaged in sexual behavior with [Abby], perhaps while under the influence of alcohol, other concerns about parenting capacity came to the fore as a result of the present evaluation."

Josue's admissions to Dr. Bromberg contrasted with his statements to Division workers. In 2008, he denied hiding in the closet and denied ever striking Abby. He also minimized or denied domestic violence in the home in interviews in 2008 and 2011. In 2011, he admitted to Division workers that he hid in the closet, and presented essentially the same version he gave to Dr. Bromberg.

The court found that Abby's out-of-court statements were corroborated, consistent with N.J.S.A. 9:6-8.46(a)(4), which states "no such statement[s], if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." Citing New Jersey Division of Youth and Family Services v. L.A., 357 N.J. Super. 155 (App. Div. 2003), and New Jersey Division of Youth and Family Services v. Z.P.R., 351 N.J. Super. 427, 436-37 (App. Div. 2002), among other authority, the court found that Abby's disclosures were corroborated in multiple ways, including her "psychological symptoms such as hyper-vigilance, self-hatred, self-blame, limited trust in others and self-injurious behaviors."

Her allegations were also corroborated by Maria's and Josue's admission that Josue was found in a closet after the second initially reported incident. The court found his explanation to be preposterous. Josue's explanation he stopped drinking to avoid new allegations also lent credibility to her accusations that he abused her while he was intoxicated. The court also found that inconsistencies in Maria's testimony "left the [c]ourt unable to extract any value from her testimony."

The court concluded that the Division had proved by a preponderance of the evidence that Josue abused Abby.

II.

We accord deference to the Family Court's fact-finding in part because of the court's "special expertise" in family matters. Cesare v. Cesare, 154 N.J. 394, 412-13 (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). 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)).

A.

We consider first Josue's argument that Abby's allegations were uncorroborated. Although Abby's out-of-court statements were admissible, pursuant to N.J.S.A. 9:8-.46(a)(4), "no such statement[s], if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." The limitation pertains to the sufficiency of the child-victim's statements as proof. Under the statute, "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 (emphasis added).

Corroboration may include "eyewitness testimony, a confession, an admission or medical or scientific evidence." L.A., supra, 357 N.J. Super.at 166 (App. Div. 2003). Corroborative evidence may be circumstantial, as we have recognized there often is no direct physical or testimonial evidence to corroborate a child's statements. Z.P.R., supra, 351 N.J. Super.at 436. "The corroborative evidence need not relate directly to the alleged abuser, it need only provide support for the out-of-court statements." Ibid. Corroboration may also be established by evidence of emotional impacts, such as nightmares and other psychological conditions. Ibid.

We agree that the court mischaracterized certain evidence as corroborative of Abby's out-of-court declarations. We recognize that a child's hyper-vigilance, self-blame, self-hatred, or self-harm may be corroborative as the emotional impacts of abuse. However, there was no competent evidence of those emotional conditions. The only evidence of those "sequelae" of abuse, as Dr. Bromberg described it, was Abby's own out-of-court statements. Dr. Bromberg did not observe these behaviors, nor did he rely on psychological testing for his conclusion that she suffered from those sequelae. Abby's statements describing her emotional symptoms were admissible as "statements made by the child relating to any allegations of abuse or neglect," N.J.S.A.9:6-8.46(a)(4), but they were not corroborative of Abby's other allegations.

We are also unpersuaded that corroboration was established by Josue's statement that he abstained from alcohol to guard against renewed allegations once Abby returned to the home, because Abby alleged he abused her when he was intoxicated. Josue's statement does not establish a consciousness of guilt. It thus falls short of corroborating Abby's allegations.

Nonetheless, we are satisfied that Abby's statements were not the "sole basis" of the court's finding. Sufficient corroboration was provided by the evidence that Josue was hiding in the closet, the shifting explanations for his presence there, and the implausibility of his claim that he was searching for tools in the closet, especially given the evening hour. The court reasonably concluded that under the circumstances, Josue's claim that he was in the closet to search for tools was preposterous. Rather, the court could reasonably find that Josue fled to the closet because he had done something wrong. This evidence of consciousness of guilt corroborated Abby's out-of-court allegations of abuse.

B.

Josue also argues the court erred in admitting Dr. Bromberg's evaluation of him, and in permitting Dr. Bromberg to testify regarding that report. We agree, but we conclude the error was not harmful.

Dr. Bromberg evaluated Josue on January 19, 2012, after the Division substantiated the allegations against him, and a fact-finding hearing had been scheduled. The report was prepared March 23, 2012. Dr. Bromberg stated at the outset of his report that his evaluation was prepared to assess Josue's parenting capacity. The form Josue signed consenting to the evaluation is not part of the record and its terms are not before us. However, Dr. Bromberg stated in this report that Josue understood that he had "been referred for an evaluation of parenting capacity" because of the allegations of abuse.

Josue's counsel objected at trial to the admission of Dr. Bromberg's evaluation of him, as well as testimony consistent with the report. However, he conceded that Josue's statements made during the evaluation were admissible as admissions of a party opponent. SeeN.J.R.E.803(b). As he did before the trial court, Josue relies on N.J.S.A.9:6-8.47(b), which prohibits the court from receiving, before completing a fact-finding hearing, reports prepared by the probation department or the Division for dispositional purposes

Reports prepared by the probation department or the division for use by the court at any time for the making of an order of disposition shall be deemed confidential information furnished to the court which the court in a proper case may, in its discretion, disclose in whole or in part to the law guardian, attorney as defined herein, or other appropriate person. Such reports may not be furnished to the court prior to the completion of a fact-finding hearing, but may be used in a dispositional hearing.

[(Emphasis added).]

Although the provision expressly refers to "reports" and not to oral testimony, we conclude that it encompasses both. The statute provides that reports "may not be furnished" to the court. The statute does not limit the method by which a report is furnished. Thus, both oral and written delivery is contemplated. A contrary reading that would allow oral testimony about barred written reports would absurdly drain the provision of any force, and defy common sense. We reject such an interpretation. See, e.g., State ex rel. K.O., 217 N.J.83, 91 (2014) (stating that legislation should be interpreted in a common sense manner to avoid rendering legislative terms meaningless).

The fact-finding hearing and dispositional hearing serve distinct goals. N.J. Div. of Youth & Family Servs. v. J.C., 423 N.J. Super.259, 266 (App. Div. 2011). Each is a significant stage in a Title Nine proceeding. Ibid. "At the fact-finding hearing, the court determines the crucial issue of 'whether the child is an abused or neglected child.'" Ibid.(quoting N.J.S.A.9:6-8.44). "Upon a finding of abuse and neglect, dispositional hearings are held 'to determine what order should be made.'" Ibid.(quoting N.J.S.A.9:6-8.45). Even absent a finding of abuse or neglect, the Division may remain involved with the family pursuant to Title Thirty. Ibid. "All of these proceedings, must be conducted with scrupulous adherence to procedural safeguards." Ibid.(internal quotation marks and citation omitted).

The apparent purpose of Section 8.47(b) is to encourage a parent's cooperation in an evaluation, despite the pendency of allegations of abuse or neglect against him or her. The parent is assured that the conclusions reached would not be used against him or her in the fact-finding hearing, but would be withheld until the dispositional hearing, if any.

We have no doubt that the report was prepared for the purposes of a dispositional hearing, after the fact-finding, to determine whether Josue was capable of parenting, and what remedial steps were appropriate. Dr. Bromberg stated at the outset of the report that he was asked to evaluate Josue's parenting capacity. His purpose was not to assess the truthfulness of Abby's allegations. This is in contrast to his purpose in evaluating Abby which was expressly intended to determine whether her allegations of abuse were credible and whether she needed psychological services. The purpose of the report of Josue's evaluation therefore pertained to the dispositional hearing, as opposed to the fact-finding hearing. Adhering scrupulously to section 8.47(b)'s mandate, the documentary report should not have been admitted, and Dr. Bromberg should not have been permitted to furnish it in oral testimony.

Rule5:12-4(d), upon which the Division relies, does not compel a different result. Pursuant to the rule, the Division may generally offer into evidence, as business records, "reports by staff personnel or professional consultants." R.5:12-4(d). First, it is unclear that the evaluation constitutes a business record, inasmuch as it was apparently prepared for litigation. State v. Berezansky, 386 N.J. Super.84, 94 (App. Div. 2006) (stating that documents prepared primarily for evidence at trial do not satisfy N.J.R.E.803(c)(6)), certif. granted, 191 N.J.317 (2007), appeal dismissed, 196 N.J.82 (2008). Moreover, the more specific statutory limitation on dispositional reports limits the Court Rule. Reconciling the statute and rule, dispositional reports may be offered into evidence, but only after the completion of the fact-finding hearing.

Reliance on In re Cope, 106 N.J. Super. 336 (App. Div. 1969), to support admissibility is misplaced for the same reasons. The case stands for the general proposition that expert reports prepared in the regular course of business by the Bureau of Children's Services, a predecessor agency to the Division, are admissible because they have a reasonable degree of accuracy. Id.at 343 (stating the agency "should be permitted to submit into evidence, pursuant to Evidence Rules63(13) and 62(5)" the predecessors to the current business record exception N.J.R.E.803(c)(6), and "business" definition, N.J.R.E.801(d) "reports by [agency] staff personnel (or affiliated medical, psychiatric, or psychological consultants), prepared from their own first-hand knowledge of the case, at a time reasonably contemporaneous with the facts they relate, and in the usual course of their duties with the [agency]"). The case does not override the more specific mandate in section 8.47(b), which was enacted several years after In re Copewas decided. SeeL.1974, c.119, 27. Nor does it authorize admission of documents prepared for litigation purposes.

Although it was error to admit Dr. Bromberg's evaluation, we conclude the error was not harmful. "A defendant is entitled to a fair trial, but not a perfect one." State v. Loftin, 146 N.J.295, 397 (1996). We may disregard an error, such as the admission of objectionable evidence, "unless it is of such a nature as to have been clearly capable of producing an unjust result." R.2:10-2.

There is sufficient credible evidence in the record to support the court's finding, apart from Josue's statement during his evaluation with Dr. Bromberg. We reach that conclusion, notwithstanding that we have not found any other source, outside the evaluation, for Josue's statement regarding his alleged abstinence from alcohol, and his reasons for doing so. We do not consider the testimony about that statement to be clearly capable of producing an unjust result. In other respects, significant evidence cited in Dr. Bromberg's evaluation of Josue was found elsewhere in the record. For example, the Division records reflected that there was an emotional distance between Abby and Josue. There was evidence from multiple sources about Josue's intoxication. Expert testimony is not required to establish that alcohol use reduces inhibitions.

Division records reflected that Josue gave inconsistent statements, first denying the "closet incident" entirely, then confirming it in his own implausible, self-serving version. That admission, as well as Maria's statements regarding the "closet incident," corroborated and lent credence to Abby's allegations.

The court had the opportunity to review not only transcripts of Abby's statements, but also a video-recording that enabled the court to assess Abby's demeanor. The court was persuaded by Abby's out-of-court statements that she was abused. Her allegations were supported by the evidence of sequelae of abuse. In sum, although the court erred in admitting into evidence Dr. Bromberg's evaluation of Josue, we discern insufficient basis to disturb the court's finding.

The remainder of Josue's arguments lack sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(1)(E).

Affirmed.

1 Pursuant to L. 2012, c. 16, effective June 29, 2012, the Division of Youth and Family Services is now known as the Division of Child Protection and Permanency. We will refer to the agency as the "Division."

2 We use pseudonyms for the reader's convenience and to protect the privacy of the child.

3 The court also found that Abby's mother, and Josue's wife, M.R. (Maria), abused or neglected Abby and her other children by failing to protect them from Josue, and emotionally abusing Abby after her disclosures. Maria's case is not before us.

4 The record on appeal includes only a transcript of the video.