DIVIAION OF CHILD PROTECTION AND PERMANENCY v. A.E.

 

(NOTE: The status of this decision is Published.)

                             RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4191-15T4

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

A.E.,

        Defendant,

and

I.B.,

     Defendant-Appellant.
__________________________________

IN THE MATTER OF R.B.,

     a Minor.
__________________________________

              Argued May 21, 2018 - Decided June 19, 2018

              Before Judges Messano, Accurso and O'Connor.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Essex
              County, Docket No. FN-07-0460-12.

              Victoria D. Miranda argued the cause for
              appellant (Williams Law Group, attorneys;
              Allison C. Williams, of counsel and on the
              brief; Victoria D. Miranda, on the brief).
            Michelle Mikelberg, Deputy Attorney General,
            argued the cause for respondent (Gurbir S.
            Grewal, Attorney General, attorney; Andrea
            M. Silkowitz, Assistant Attorney General, of
            counsel; Michelle Mikelberg, on the brief).

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

PER CURIAM

       This abuse and neglect matter returns to us following our

remand for the judge to consider the testimony of a psychologist

offered by the Division of Child Protection and Permanency to

corroborate five-year-old Rose's report of sexual abuse by her

father, defendant I.B.1    N.J. Div. of Child Prot. & Permanency v.

I.B., 
441 N.J. Super. 585, 598 (App. Div. 2015).    Upon

consideration of the testimony, the judge found it corroborated

Rose's allegations and entered a finding that I.B. abused or

neglected his daughter.    We affirm.

       We provided the background of this case in our prior

opinion.

                 The Division claimed that defendant
            father I.B. committed an act of sexual abuse
            against his five-year-old daughter, Rose, by
            calling her into the bathroom at their home
            and telling her to touch his penis. Some
            days later, Rose spontaneously revealed this
            incident to her mother, A.E., a medical
            doctor who had trained as a gynecologist in

1
    We use initials and pseudonyms to protect the child's privacy.

                                  2                           A-4191-15T4
         the family's native Sudan. Rose's mother
         initially discounted the allegation. She
         assumed the child may have accidently seen
         her father naked and been naturally curious,
         given her age, prompting the child's
         conversation with her. When she asked Rose
         about it sometime later, however, the child
         got upset and said she didn't want to talk
         about it because it made her stomach hurt.
         After several more such conversations in
         which the child shared additional details,
         including that her father had washed "the
         glue" from her hands afterward, A.E. sought
         a restraining order against her husband in
         which she revealed the child's allegation.
         Court personnel advised A.E. that she should
         report the incident to the Division.

         [I.B., 
441 N.J. Super. at 588 (footnotes
         omitted).]

    We noted "both parents acknowledged marital discord pre-

dating the allegation of sexual abuse," and that I.B

"categorically denied the child's account."   Ibid.   He claimed

his wife, A.E., "coached their daughter to make false

allegations against him."   Ibid.

    Describing the investigation, we wrote that

         [f]ollowing an initial interview by a
         Division caseworker, Rose participated in a
         videotaped interview conducted by a
         certified forensic interviewer at Wynona's
         House Child Advocacy Center. Rose recounted
         the allegation to the interviewer, providing
         some specific details such as the television
         program she had been watching when her
         father called her into the bathroom as well
         as the particular towel he had wrapped
         around him. Using anatomically correct
         dolls to demonstrate what had occurred, the

                                3                          A-4191-15T4
five-year old placed the female doll's hand
on the male doll's penis and moved the hand.
She reported that her father was silent as
he "finished peeing." At the end of the
interview, Rose spontaneously asked the
interviewer whether "touching butts [the
word she used to describe the vagina, penis
and buttocks on anatomical drawings] is [a]
good thing or not a good thing?"

     Following the interview, the Division
filed its complaint and referred Rose to the
Metropolitan Regional Child Abuse Diagnostic
and Treatment Center. Staff psychologist
Justin Misurell, Ph.D., conducted a
psychosocial evaluation of the child based
on the videotape of the forensic interview,
Division records, and a clinical interview
of Rose. In that interview, Rose confirmed
the statements she made during the forensic
interview and "reported that she frequently
experiences nightmares about 'bad things
like getting locked in the bathroom.'" She
also reported that her parents used to often
argue, that she thinks frequently about
those incidents, and that they make her feel
sad.

     Misurell diagnosed Rose as suffering
from Adjustment Disorder with mixed
disturbance of emotions and conduct and
concluded her "statements and presentation
are consistent with a child who has
experienced sexual abuse." He found she
"has exhibited trauma related symptoms"
including intrusive thoughts about the
incident, nightmares, and has engaged in
active attempts to avoid thinking about the
abuse. Misurell attributed Rose's symptoms
to "her sexual abuse experience and exposure
to marital discord."

[I.B., 
441 N.J. Super. at 589 (alterations
in original).]


                     4                         A-4191-15T4
    The trial judge ruled Dr. Misurell's testimony

inadmissible.   Id. at 589-90.    Although rejecting I.B.'s

assertion that A.E. coached their daughter to lie about the

incident after hearing A.E.'s testimony, the judge nevertheless

found inconsistencies in the timeline she offered and ultimately

determined the Division lacked any corroboration of the child's

report of her father's abuse.     Id. at 590.

    We concluded the judge erred in striking "psychological

evidence of emotional effects" routinely admitted in Title Nine

cases to assist judges "'to understand the evidence or to

determine a fact in issue.'     N.J.R.E. 702; [N.J. Div. of Youth &

Family Servs. v.] Z.P.R., 351 N.J. Super. [427,] 439 [(App. Div.

2002)]."    Id. at 591-92.   We expressed our expectation that "the

judges in these cases [will] rigorously evaluate expert

testimony offered to corroborate a child's allegation of abuse,"

but held that "so long as the proffered testimony meets the

requirements of N.J.R.E. 702 and [State v. ]Kelly, [
97 N.J. 178

(1984)], as the evidence offered here does, the questions should

be directed to the weight and not the admissibility of the

testimony."    I.B., 
441 N.J. Super. at 596-97 (footnotes

omitted).

    Accordingly, because we held "the expert's opinion was

admissible as substantive evidence to corroborate the child's

                                  5                           A-4191-15T4
allegation of abuse," we remanded "for consideration of the

expert's report and testimony," with instructions to the judge

"to weigh all of the evidence, including Misurell's testimony,

make determinations as to the credibility and weight of that

evidence, and come to a final determination as to whether the

allegation of abuse has been proven by a preponderance of the

evidence."   Id. at 598.   Allowing for the possibility that the

trial judge's decision to exclude "the expert's testimony may

have resulted in the . . . judge not probing the expert's

opinion as he would otherwise, we [did] not foreclose the judge

from recalling the expert to address any questions the judge

might have regarding his testimony."   Ibid.

    On remand, the trial court provided the parties the

opportunity to brief whether Dr. Misurell should be permitted to

testify and the weight the court should afford the testimony.

The Division opposed reopening the record for Dr. Misurell's

testimony, arguing it was unnecessary as he had already

testified to his opinions at length.   I.B. argued the court

should reopen the record to address specific issues raised by

this court, including "how, or why, Dr. Misurell attributed

[Rose's] nightmares to sexual abuse, and not to her parents'

marital discord."   The court elected to hear additional

testimony from Dr. Misurell as requested by I.B.    The judge

                                 6                          A-4191-15T4
questioned the psychologist at length, focusing particularly on

the symptoms the child was reported to have exhibited and their

relation to:   the expert's diagnosis of adjustment disorder; the

child's use of different descriptors for the conduct at

different times; and why the expert concluded the child's

nightmares were more likely related to her alleged sexual abuse

than to her parents' marital discord or the shunning the family

suffered following the child's disclosure.   The judge also

probed whether the expert considered that the child's nightmares

only began after the child's report of the incident, days or

perhaps weeks after the incident occurred and asked what "red

flags" would have caused the psychologist to question the

validity of the child's disclosure.   I.B.'s counsel cross-

examined the expert, getting him to concede the acrimonious

relationship between her parents undoubtedly played a role in

the child's distress, and that the enormous variability in

children's reactions to sexual abuse makes diagnosis difficult.

    After hearing the testimony, the judge issued an oral

opinion from the bench, concluding the expert's testimony

corroborated Rose's report of sexual abuse by her father.     The

judge stated he found Dr. Misurell "very credible, honest and

straight-forward in his testimony."   The judge was particularly

impressed by the expert's acknowledgment of the limits of

                                7                           A-4191-15T4
psychological evidence, recapping his testimony on the point by

saying, "look, if you're looking for the answer in a

psychologist to tell you whether the incident happened, I can't.

I can only tell you that she is suffering from this syndrome and

that this syndrome is consistent."

    Again expressing the opinion that "this was an extremely

close case," for the reasons discussed at length in his decision

after the fact-finding hearing in 2012, the judge pronounced

himself satisfied based on Dr. Misurell's testimony that Rose

suffered from an adjustment disorder, "pre-post traumatic

stress," consistent with abuse, providing "the corroboration

necessary for a determination in this case."

    I.B. appeals, arguing the trial court erred by giving undue

weight to Dr. Misurell's testimony and "making legal

determinations that do not flow from the facts presented at

trial."    I.B. further argues Dr. Misurell's testimony did not

provide sufficient corroboration for Rose's out-of-court

statements, and thus "cannot be used to sustain a finding of

sexual abuse," and that he was deprived of the effective

assistance of counsel during the fact finding hearing.     Having

reviewed the record, we conclude none of those arguments is of

sufficient merit to warrant extended discussion in a written

opinion.   R. 2:11-3(e)(1)(E).

                                 8                          A-4191-15T4
    I.B.'s arguments as to the judge's assessment of Dr.

Misurell's testimony reduce to quarrels with the judge's fact-

finding, which we are simply in no position to reject.     We will

not overturn the factual findings and legal conclusions of a

trial judge sitting in a non-jury case "unless we are convinced

that they are so manifestly unsupported by or inconsistent with

the competent, relevant and reasonably credible evidence as to

offend the interests of justice[.]"   Seidman v. Clifton Sav.

Bank, S.L.A., 
205 N.J. 150, 169 (2011) (alteration in original)

(quoting In re Trust Created By Agreement Dated December 20,

1961, ex rel. Johnson, 
194 N.J. 276, 284 (2008)).    Deference is

especially appropriate in a case such as this where "the

evidence is largely testimonial and involves questions of

credibility."   Ibid.

    As the Supreme Court has observed, because the trial court

"'hears the case, sees and observes the witnesses, [and] hears

them testify,' it has a better perspective than a reviewing

court in evaluating the veracity of witnesses."     Pascale v.

Pascale, 
113 N.J. 20, 33 (1988) (alteration in original)

(quoting Gallo v. Gallo, 
66 N.J. Super. 1, 5 (App. Div. 1961)).

The Court has instructed reviewing courts to accord a special

"deference to family court factfinding" in light of "the family



                               9                            A-4191-15T4
courts' special jurisdiction and expertise in family matters."

Cesare v. Cesare, 
154 N.J. 394, 413 (1998).

    Having reviewed the record, we are satisfied the trial

judge fulfilled all of his obligations on remand.   The judge

admitted Dr. Misurell's testimony and rigorously questioned the

expert in order to understand the limits of the testimony and

the weight the court should accord it.   After weighing the

expert's testimony in light of the other evidence in the record,

the judge concluded the psychological evidence corroborated

Rose's report of her father's sexual abuse.   See Z.P.R., 
351 N.J. Super. at 436.   We find no error in the judge's assessment

of the evidence or his conclusion that the Division proved its

case by a preponderance of the evidence.   I.B.'s contention that

he was deprived the effective assistance of counsel on remand is

utterly without merit.   See R. 2:11-3(e)(1)(E).

    Affirmed.




                               10                         A-4191-15T4