NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.G. IN THE MATTER OF J.G C.G. and J.G., minors

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0036-10T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.G.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF J.G.,

C.G. and J.G., minors.

_________________________________________________

August 1, 2011

 

Submitted May 17, 2011 - Decided

 

Before Judges Wefing, Payne and Baxter.

 

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Cumberland

County, Docket No. FN-06-0067-08.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief).

 

Paula T. Dow, Attorney General, attorney

for respondent (Melissa H. Raksa, Assistant

Attorney General, of counsel; Cynthia J. Schappell, Deputy Attorney General, on

the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor children J.G. and J.G. (Christopher A. Huling, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Defendant father, J.G., appeals a July 15, 2010 order of the Family Part finding, by clear and convincing evidence, that he committed acts of child abuse pursuant to N.J.S.A. 9:6-8.21c(1), (3) and (4) when he, on two occasions, sexually assaulted his daughter, fictitiously "Jane," and when he administered excessive corporal punishment to her younger brother, fictitiously "Jim," in Jane's presence.1 J.G. appeals as well from an order terminating litigation that was entered on the same day.

I.

Because J.G. did not appear at the fact-finding hearing, evidence introduced by the Division of Youth and Family Services (DYFS) was uncontroverted. That evidence established that the mother, L.M., and the father, J.G., had three children together, an older daughter fictitiously designated as "Carol," Jane, and Jim.

At some point, Carol had been sexually assaulted by her mother's then-boyfriend. She had acted out, she had refused to attend school, and she had left her mother's custody. As a result, Carol had been placed by DYFS in a residential facility. Although appearing in the caption, she was not a subject of these proceedings.

The mother had difficulties finding adequate housing, and for a period of time, she and her two remaining children lived in a shelter. As a result of her lack of housing, approximately one year before disclosure of the events giving rise to the present action, custody of Jane and Jim had been transferred to the father. Stephanie Iglesias, who had been assigned by DYFS as the children's caseworker in July 2008, testified at the hearing that she visited the father's residence on a monthly basis, but had no concerns about the living arrangements. She was aware that the father drank liquor on a daily basis, but she did not know what quantity he drank. Iglesias had never seen the father drunk or observed bottles of alcohol around the home. However, her visits to the home had all been in the afternoon.2

On Friday, May 8, 2009, Jane, who was celebrating her sixteenth birthday, was granted permission by her father to spend the night with a friend. During the next day, her father called her repeatedly, cursing at her. Realizing that he had been drinking, Jane became frightened and stopped answering her father's calls. Eventually, Jane disclosed to her friend's mother and then to a teacher that her father had raped her on two occasions while drunk. The police were called, and a Vineland police officer named Runkle took her to the police station and notified DYFS.

As a result, Carrie McClain, an intake and special response unit (SPRU) worker was called at 12:10 a.m. on Sunday May 10. McClain contacted Officer Runkle who stated that Jane had been reported missing by her father on May 9, but the father had not disclosed that he in fact knew where his daughter was. When Runkle located and then spoke to Jane, she informed him that she was afraid to go home because her father "rapes her." The last time it had occurred was at the end of January or the beginning of February. When asked, Officer Runkle informed McClain that he regarded Jane's story as credible, since she was "sitting there trembling."

McClain responded to the police headquarters at 1:15 a.m., and at 2:00 a.m. Jane's mother arrived. McClain overheard the mother talking to Jane and asking her if the story were true, which Jane said it was. At 2:30, McClain, in the company of Officer Runkle and another DYFS worker, interviewed Jane, who stated that just before Christmas and again at the end of January her father had entered her bedroom, drunk, had taken off her clothing as well as his own, and then proceeded to fondle her and commit sexual intercourse. After he had ejaculated into a condom, he left, telling her that this was their little secret. Jane's brother was not in the residence when either sexual assault took place.

Jane confirmed that her father drank alcohol every day, including both hard liquor and beer. She stated additionally that her father abused her brother, and that he would "beat him up," kick and hit him.

McClain determined as the result of her interview with Jane that both she and Jim should be removed from their father's custody. Jim was picked up from his home at about 3:30 a.m., and, after a number of contacts had refused to take the children in, at 7:00 a.m., they were taken to a shelter in Cape May.3 The two children were later placed with their mother.

On May 14, 2008, Jane, accompanied by her mother, was taken by Iglesias for an examination by Martin A. Finkel, D.O., a Professor of Pediatrics at the University of Medicine and Dentistry of New Jersey and the Medical Director of its Child Abuse Research Education & Service Institute. Dr. Finkel, who testified at the fact-finding hearing and also wrote a report that was introduced into evidence, obtained a medical history from Jane's mother. He then obtained a history of the two incidents in a private conversation with Jane. Her description of what had occurred was very similar to that which had been given to McClain. However, Jane stated additionally, that the sexual penetration had "hurted" and that she had bled and experienced a burning sensation when she urinated after the December assault. According to the doctor, "[o]bservation of blood and dysuria confirms with medical certainty that [Jane] had blunt force penetrating trauma."

Upon questioning by Dr. Finkel, Jane denied experiencing any physical discipline by her father, but she said: "He would beat my brother, punch him, kick him. He said that if Jim wants to be a man he has to be treated like one."4

The doctor then conducted a complete physical examination, including an adult gynecological examination and testing, but nothing remarkable was revealed. However, when the doctor introduced the vaginal speculum, Jane stated that it felt just like her father's penis.

On May 15, 2009, Iglesias took both Jane and Jim for interviews with Detective McCormick at the Vineland Police Department. Iglesias, who was in a separate room, heard the interviews and took notes as to their content. For a third time, Jane consistently reported the details of the two sexual attacks upon her by her father. She reported that she had never had sex before. Jane further stated that she had not told anyone of the incidents until May 9 because she was frightened.

Iglesias's contact sheet for the day states that when the detective spoke to Jim, he reported that his father treats him "like a soldier." He reported that his father had punched him before the Christmas break after his father learned that he had used a dirty word at school, and that as a result, he had bruises on his head and back.

For reasons that are not explained in the record, the Cumberland County Prosecutor declined to investigate Jane's charges and did not prosecute her father.

After the evidence that we have summarized was presented, the judge found that the father had committed acts of child abuse consisting of sexually assaulting Jane and administering excessive corporal punishment to Jim in her presence. After completing the hearing, the judge inquired whether Jane was undergoing counseling, and he was informed that because the case had taken so long to conclude, all services provided by DYFS had been completed. He was also informed that both Jane and Jim remained with their mother, and that neither wished visitation with their father a sentiment that was evidently reciprocated. As a consequence, with the consent of the parties' attorneys, the judge closed the case, entering an order terminating litigation. This appeal followed.

On appeal, the father makes the following arguments:

POINT I

 

THE TRIAL COURT'S FINDING OF ABUSE OR NEGLECT BY CLEAR AND CONVINCING EVIDENCE VIOLATED J.G.'S FUNDAMENTAL RIGHT TO DUE PROCESS BECAUSE HE WAS NOT ADVISED OF THIS POSSIBILITY IN ADVANCE. (Not raised below.)

 

POINT II

 

THE TRIAL COURT VIOLATED THE SEPARATION OF POWERS DOCTRINE BY RE-WRITING N.J.S.A. 9:6-8.46 TO ALLOW FOR A DIFFERENT STANDARD OF PROOF. (Not raised below.)

 

POINT III

 

THE FORM OF ORDER UTILIZED BY THE TRIAL COURT VIOLATED THE SEPARATION OF POWERS DOCTRINE BECAUSE IT IMPROPERLY PROVIDED THE TRIAL COURT WITH AN ALTERNATIVE STANDARD OF PROOF FROM THE STATUTORILY REQUIRED STANDARD OF PROOF PROVIDED IN N.J.S.A. 9:6-8.46. (Not raised below.)

 

POINT IV

 

THE TRIAL COURT ABDICATED ITS DUTY TO DETERMINE THE CREDIBILITY OF THE EVIDENCE WHEN IT RELIED ON DR. FINKLE'S CREDIBILITY FINDINGS RATHER THAN MAKE ITS OWN.

 

POINT V

 

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

 

POINT VI

 

J.G. RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL THROUGHOUT THE FACT FINDING PROCEEDINGS. (Not raised below.)

 

POINT VII

 

THE TRIAL COURT ERRED IN NOT HOLDING A DISPOSITIONAL HEARING BEFORE DISMISSING THE CASE.

 

We affirm.

II.

In his first three points, the father claims that he was prejudiced by the judge's use of a clear and convincing evidentiary standard, not the preponderance of the evidence standard set forth in N.J.S.A. 9:6-8.46b. As a preliminary matter, it is not clear to us whether the judge held that a clear and convincing evidentiary standard was applicable in the matter, or whether he merely found that the evidence presented by DYFS was sufficiently persuasive to meet the higher standard. However, if we accept the position that the judge found the higher standard to be applicable, we are unable to discern how the father could have been thereby harmed, since as a result, DYFS was required to create in the mind of the judge "'a firm belief or conviction as to the truth of the allegations sought to be established.'" Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169-70 (2006) (quoting In re Purrazzella, 134 N.J. 228, 240 (1993)). Otherwise, DYFS would only have been required to prove "'that a desired inference is more probable than not.'" Ibid. (quoting Biunno, Current N.J. Rules of Evidence, comment 5a on N.J.R.E. 101(b)(1) (2005)). As a consequence, we decline to further address the arguments set forth in the first three points in the father's brief, finding them of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

III.

The father also argues that the judge's finding of abuse or neglect was not supported by competent, material and reliable evidence. We disagree.

An "abused or neglected child" is defined in N.J.S.A. 9:6-8.21(c) as including

a child less than 18 years of age whose parent or guardian, as herein defined, (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or function of any bodily organ; . . . (3) commits or allows to be committed an act of sexual abuse against the child; (4) or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of his parent . . . (b) . . . unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court

. . . .

 

"In an abuse and neglect case, the Division must establish by a preponderance of the evidence that the child is abused or neglected and 'only competent, material and relevant evidence may be admitted.' N.J.S.A. 9:6-8.46(b)." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010).

In a case such as this, we "defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 293 (2007) (internal quotation marks omitted)); see also Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).

At the fact-finding hearing in this matter, testimony was offered by Dr. Finkel, by SPRU worker McClain and by caseworker Iglesias. Additionally, Dr. Finkel's expert report was placed in evidence, as was McClain's SPRU report and Iglesias's contact sheets relating to the period after Jane made her disclosures. A foundation was laid for the admissibility of each. The witnesses' testimony, together with the content of the written documents, constituted the basis for the judge's finding of abuse and neglect.

The father contends that the judge's conduct of the hearing was improper. He argues with respect to Jane that the judge abdicated his role as finder of the facts when he deferred to Dr. Finkel's evaluation of Jane's credibility. He argues further that Dr. Finkel's testimony contained much inadmissible hearsay, and that his report was not admissible as a business record kept in the normal course of business, because he was charged with investigating abuse or neglect on DYFS's behalf, not offering treatment. The father further argues that the doctor failed to pursue the possibility of a boyfriend or some other male having had sexual contact with Jane. He argues as well that he was prejudiced by the failure to produce a diary kept by Jane that at some point had been in the possession of Iglesias and the police. We reject the father's arguments.

The Supreme Court explained in M.C. III:

In 1974, this Court adopted Rule 5:12-4(d), which permits the Division "to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants." Further, "[c]onclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." R. 5:12-4(d). N.J.R.E. 803(c)(6) is the business-records exception to the hearsay rule and 801(d) defines the word business to "include[ ] every kind of business, institution, association, profession, occupation and calling, whether or not conducted for profit, and also includes activities of governmental agencies."

 

[M.C. III, supra, 201 N.J. at 347.]

 

Additionally, as noted by the Court in M.C. III, id. at 346, the Legislature enacted N.J.S.A. 9:6-8.46a, which provides:

a. In any hearing under this act . . . (1) proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the parent . . . and (2) proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or guardian shall be prima facie evidence that a child of . . . such person is an abused or neglected child, and (3) any writing, record or photograph, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any hospital or any other public or private institution or agency shall be admissible in evidence in proof of that condition, act, transaction, occurrence or event, if the judge finds that it was made in the regular course of the business of any hospital or any other public or private institution or agency, and that 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, shall be prima facie evidence of the facts contained in such certification [sic]. . . . and (4) 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 made a fact finding of abuse or neglect.

 

We conclude that Dr. Finkel's report, the SPRU report, and Iglesias's contact sheets were all properly introduced into evidence pursuant to these provisions and that they, together with associated testimony, provided adequate support for the judge's finding of abuse and neglect.

In reaching this conclusion, we reject the father's position that the judge improperly substituted Dr. Finkel's opinion with respect to Jane's credibility for an independent finding of his own. We do not read either Dr. Finkel's testimony or the judge's decision as the father does.

What the judge stated was that he adopted the text of Dr. Finkel's report as accurately reflecting what Jane told him. There is no evidence in the record to suggest that the judge was wrong in doing so. Further, in the absence of proof to the contrary, he agreed with Dr. Finkel's conclusion that, because Jane's version of what had occurred had been corroborated by her account of bleeding and transient, painful urination and by her statement regarding the speculum, and because neither she nor her mother offered a history of a sexual encounter other than what she described with her father, her account, which was consistent with available medical evidence, should be credited. The record does not reflect any abdication by the judge of his fact-finding role in this case. In fact, throughout his opinion, the judge emphasized the necessity for him to independently evaluate the credibility of Dr. Finkel's testimony. Had there been competent evidence that Jane had another sexual partner, then a basis for reaching a conclusion different from that of Dr. Finkel would have been established. However, there was none. Instead, both DYFS workers offered a picture of a teenager who adamantly resisted returning to her father's custody and when asked why, reluctantly and tearfully recounted his rapes of her. Additionally McClain heard Jane recount the same story in essentially the same terms to Officer Runkle, and Iglesias heard the story again when Jane gave it to Detective McCormick.

We also reject the father's argument that he was prejudiced by the loss of a diary maintained by Jane that might have had a bearing on the credibility of her statements. At trial, testimony was elicited from Iglesias that Jane had maintained a diary, and that it has been in her possession and in that of the police. Iglesias could not recall any relevant evidence contained in the diary, and there was no evidence that the diary played a role in the police's investigation of the sexual assaults. As a consequence, we find no basis to conclude that the failure to produce the diary in any manner prejudiced defendant or resulted in reversible error. State v. R.W., 104 N.J. 14, 28 (1986).

The father complains that Jane was not produced as a witness at trial. However, that is not required, so long as corroboration of her statements was provided. N.J.S.A. 9:6-8.46a(4). Here, such corroboration existed through Jane's disclosure to Dr. Finkel of the symptoms that she experienced following the acts of intercourse and her association of the insertion of her father's penis into her vagina with the sensation produced by the doctor's insertion of a speculum.

As a final matter in connection with Jane, we note that the trial judge considered and properly rejected defense counsel's argument that Jane could not be believed because of the lapse of time between the alleged sexual abuse and her reports of its occurrence, concluding that the delay was likely the result of child sexual abuse accommodation syndrome. See State v. R.B., 183 N.J. 308, 322 (2005); State v. J.Q., 130 N.J. 554, 566-74 (1993) (recognizing and discussing syndrome); Model Jury Charge (Criminal), Child Sexual Abuse Accommodation Syndrome (Where State Presents Evidence Thereof) (Revised 03/22/04).

With respect to Jim, we note our uncertainty as to the scope of the judge's ruling with respect to him. However, if the judge intended to find abuse of him, we find that conclusion justified, in part, as the result of N.J.S.A. 9:6-8.46a(1), which provides that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child[.]" While we do not suggest that there was any evidence of sexual abuse by the father of Jim, we find it fair to infer that the father's disregard for the rights of his daughter to be free from abuse provides some support for the conclusion that he would likewise disregard the rights of his son to be free from a different form of abuse.

Additionally, we note that Iglesias testified at the hearing that, at the time that Jane reported the sexual assaults by her father, an investigation was underway to determine whether Jim had been the victim of excessive corporal punishment. Her contact sheets reflect in that connection that Jim was interviewed by Detective McCormick, and at that time confirmed the abuse in a statement admissible pursuant to N.J.S.A. 9:6-8.46a(4). Corroboration for Jim's statement to the police detective was provided by Jane, who stated that she had observed her father beating his son.

As a consequence of the foregoing, we conclude that competent, credible evidence in the record amply supports the judge's determination that abuse and neglect by the father, as defined in N.J.S.A. 9:6-8.21(1), (3) and (4), had been established.

IV.

The father contends in the next point of his brief that he received ineffective assistance of counsel at the hearings in this matter. In that regard, he claims that counsel was ineffective in failing to object to the judge's utilization of an improper standard of proof, in failing to object to the admission of hearsay evidence, and in failing to object to the failure of DYFS to safeguard Jane's diary.

The Court has recognized the applicability of the principles expressed in connection with petitions for post-conviction relief in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987), in the context of a case seeking termination of parental rights. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007). We have similarly applied Strickland in an abuse and neglect case under Title 9. N.J. Div. of Youth & Family Servs. v. N.S. & R (In re K.A.N.), 412 N.J. Super. 593, 642-43 (App. Div. 2010).

Pursuant to Strickland, to prove ineffective assistance of counsel, the father was required to demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Performance is considered to be deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. To demonstrate prejudice, the defendant must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. We recognize a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

Applying these standards to the present matter, we find that the father has not met Strickland's second prong that if counsel had performed effectively there is a reasonable probability that the result would have been different. In earlier portions of this opinion, we have substantively analyzed each of the matters that the father now raises in the context of ineffective assistance of counsel, and found that none resulted in reversible error. Thus, counsel cannot be found at fault under Strickland's standards.

V.

In his final argument, the father contends that the judge erred by failing to hold a dispositional hearing, as required to protect his due process rights. We again reject the father's position.

N.J.S.A. 9:6-8.47(a) provides: "Upon completion of the fact-finding hearing the dispositional hearing may commence immediately after the required findings are made." See also N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 399 (2009). At the dispositional hearing, the court may

enter a suspended judgment, N.J.S.A. 9:6-8.52; release the child to the custody of the parent or guardian responsible for the child's care at the time of the filing of the complaint, N.J.S.A. 9:5-8.53; place the child with "a relative or other suitable person," N.J.S.A. 9:6-8.54(a); make an order of protection, N.J.S.A. 9:6-8.55; place the offending parent or guardian on probation, N.J.S.A. 9:6-8.56; and/or require the offending person to accept therapeutic services, N.J.S.A. 9:6-8.51(a). In all cases the court "shall state the grounds for any disposition made." N.J.S.A. 9:6-8.51(b).

 

[G.M., supra, 198 N.J. at 399-400.]

 

Here, the judge asked what the status of the matter was, and he was informed that the two younger children remained with their mother and that all necessary services had been provided by DYFS. The Deputy Attorney General then asked that the proceedings be terminated and, on inquiry, there was no objection. Under those circumstances, the judge was well justified in considering his inquiries sufficient to satisfy the dispositional hearing requirements. No error occurred.

Affirmed.

 

1 It is unclear whether the judge directly found abuse of Jim by the father. The order states: Following the Fact Finding Hearing . . . the court hereby determines . . . that the defendant . . . abused or neglected the child(ren) in that [he] sexually assaulted his daughter [Jane] on 2 occasions and thus pursuant to N.J.S.A. 9:6-8.21c(3) and c(4) and c(1).

The transcript of the judge's fact-finding states:

I find that the truth that is before me is so clear, direct and weighty and convincing, as to enable me to come to a clear conviction, without hesitancy, as to the truth of the precise facts, which I just put on the record here.

 

And that is, that in December and January of the years 2008 and January of 2009, that this father had inappropriate sexual contact with this child.

 

He abused and/or neglected the child . . . .

 

[THE DEPUTY ATTORNEY GENERAL]: Your Honor, we're also asking that you make a finding, as a result of 9:6-8.21c(3), which is the sexual abuse.

 

. . . .

 

THE COURT: The language I was seeking recently was corporal punishment. That the father exercised excessive corporal punishment as to the son, in the presence of the daughter.

2 Contact sheets authored by Iglesias prior to May 10, 2008 were not introduced as exhibits at trial. Her contact sheets for May 11, 14 and 15 were produced and placed in evidence pursuant to N.J.S.A. 9:6-8.46a.

3 McClain's Referral Response Report was likewise introduced into evidence.

4 Iglesias's contact sheet pertaining to the visit set forth the fact that there was an open physical abuse allegation involving the father and Jim.