DIVISION OF YOUTH AND FAMILY SERVICES v. H.G., JR IN THE MATTER OF T.G AND G.B

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1671-10T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

H.G., JR.,

Defendant-Appellant,

____________________________________

IN THE MATTER OF T.G. AND G.B.,

Minors.

____________________________________

December 8, 2011

 

Submitted November 16, 2011 - Decided

 

Before Judges Fuentes, Harris, and Koblitz.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-88-10.

 

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

 

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Edward Devine, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors T.G. and G.B. (Melissa R. Vance, Deputy Attorney General, on the brief).

PER CURIAM

Defendant Harold G. (a pseudonym) appeals the August 11, 2010 order of the Family Part finding that he abused and neglected his daughters Teresa and Gabriela (both pseudonyms). Harold does not appeal the court's October 14, 2010 order accepting his voluntary surrender of parental rights. We affirm.

I.

On August 9, 2006, the New Jersey Division of Youth and Family Services (DYFS) received a referral from the Ocean County Prosecutor's Office detailing concerns for the safety and welfare of then thirteen-year-old Teresa and twelve-year-old Gabriela who were in their father's care. Information was received indicating that Teresa had disclosed that she had sexual intercourse with her father on two occasions and that Gabriela had alleged that her father fondled her breasts. After an investigation that concluded with the girls' denials, these allegations of sexual abuse were deemed unfounded by DYFS.

One year later, on August 12, 2007, DYFS received another referral citing concerns for the safety and welfare of Gabriela while in her father's care. It was reported that Gabriela ran away from home after a confrontation with her father and stepmother about allegedly having sexual relations with her boyfriend. Gabriela informed DYFS that the prior allegations of sexual abuse by her father were true and that she had lied when she denied them one year earlier. After another investigation and a year-long involvement with the family, DYFS closed the case after determining that "there is no abuse or neglect at this time. Family is functioning adequately."

On November 23, 2009, DYFS received yet another referral, this time from Gabriela's and Teresa's high school counselor, citing concerns for the girls' safety and welfare, again while in their father's care. The referral included Gabriela's and Teresa's allegations that their father "consistently [left] them home alone for at least 2-3 days without money, food, or emergency contact information." Gabriela once again stated that her recantation of prior sexual abuse by her father was dishonest. Gabriela was reported as indicating that "the allegations were in fact true but she was afraid of being removed from the home."

In furtherance of its investigation, DYFS contacted the local police department and a school official. Teresa and Gabriela were interviewed. The police depoartment conducted its own investigation. The girls reaffirmed their most recent allegations. Consequently, DYFS executed a "Dodd removal" of the girls from their father's home.1

The next day, pre-placement physicals of the girls were conducted and concerns noted. Teresa reported chronic back pain and pain in her rib cage. Gabriela had a scar on her shoulder, which she claimed was a result of her father hitting her with a table.

On November 25, 2009, Dr. Steven Kairys examined the girls at the Child Protection Center at Jersey Shore University Medical Center. Dr. Kairys concluded that Teresa presented "longstanding physical and sexual abuse." As to Gabriela, Dr. Kairys concluded that she had "very high concerns of sexual and physical abuse." He recommended that both girls receive "full evaluation[s] for sexual assault."

Teresa and Gabriela later disclosed at least twelve incidents of abuse by their father. These included inappropriate touching and fondling, sexual contact, physical abuse, leering, and encouragement to ingest controlled dangerous substances.

Fact-finding hearings were held in the Family Part in 2010. Gabriela and Teresa repeated their allegations of abuse separately during in camera examinations. Gabriela explained what occurred when she sought help from adults. She noted that she told her mother what her father was doing and that her mother instructed that they tell their stepmother, which they did to no avail. The stepmother called them liars and told their father, who then beat them. Teresa explained that she had recanted because her father beat her.

On June 10, 2010, Dr. Kairys testified on behalf of DYFS. Because there were no allegations of sexual penetration, physical examinations were not performed. Dr. Kairys offered that throughout his career he had conducted over 400 sexual abuse examinations and that in ninety percent of those cases, medical examinations were not pertinent. Dr. Kairys noted that a diagnosis could be based on the individual's history plus psychological aspects of being sexually abused, which include running away, sexualized behaviors, and sexual aggressiveness in a child.

Dr. Kairys expressed no ultimate conclusions, but stated that he had "concerns" about sexual abuse against Teresa "based on her litany of issues and background." He also noted that after recanting, Gabriela suffered severe psychological problems including attempted suicide and running away.

On July 26, 2010, a friend of the girls testified on behalf of the Law Guardian to corroborate Gabriela's and Teresa's in camera testimony. The defense presented the testimony of four witnesses, including Harold's now ex-wife, Kim (a pseudonym), who vouched for Harold's innocence and portrayed her former step-daughters, Gabriella and Teresa, as liars. Kim testified that she still loved Harold because he is the father of her three children. She further noted that she blamed Gabriela and Teresa for the failure of her marriage.

On August 11, 2010, in a detailed twenty-page written opinion, the trial court found that Harold abused and neglected his daughters. The court specifically found the following:

There was sufficient detail in the testimony of the children, which lends credibility to their account.

 

The testimony of [Gabriela] and [Teresa] was not only detailed, but consistent with each other's stories and consistent through the several months of investigation.

 

There was corroboration in the detailed testimony . . . regarding the disclosure of the abuse. [The] story of the abuse that was disclosed . . . was consistent with the testimony the children gave to the court and to [DYFS] throughout the investigation.

 

[Gabriela] and [Teresa] had a reason to tell [a witness] of the abuse once [the witness] confided in them about her concerns that [Harold] had acted inappropriately toward her. It was [Harold's] actions toward [the witness] that lead to the further disclosure of abuse. Such disclosure did not seem to be contrived, but was a candid reaction to [the witness's] concern.

 

[Gabriela] and [Teresa] were residing with [Harold] during the times of the alleged abuse. As confirmed in [DYFS's] records, [Gabriela] and [Teresa] were placed with their father and continued to reside in his home throughout the years the children alleged the abuse occurred.

 

[Gabriela's] actions of running away on two occasions and attempting suicide several times indirectly corroborate the mental state she was in due to the abuse. [Gabriela] consistently cited the abuse by her father as a reason for her running away and for her depressive state that [led] to suicidal action, both ways to retreat from the abuse. [Gabriela] ran away in order to avoid [Harold].

 

Several of the witnesses mentioned [Gabriela] and [Teresa's] sexual acting out. Although not necessarily unusual to children of [Gabriela's] and [Teresa's] age, courts have considered such action by children to indirectly corroborate sexual abuse.

 

Dr. Kairys testified to being concerned that the children were victims of sexual abuse by the fact that their behavior and depression had not decreased despite being placed in a stable, safe home outside of [Harold's] care. Although both children had an extensive history with [DYFS], such resulting behavior would most likely decrease with time in a stable placement. He noted the clear signs of post-traumatic stress disorder associated with victims of sexual abuse and how such symptoms do not decrease easily. He also found them to be truthful with details, but not too many of the details.

 

Dr. Kairys testified that during the several years of his experience in the area of child sexual abuse, it was not uncommon for children to recant allegations of abuse. He noted that [Gabriela] and [Teresa] explained why they recanted their initial allegation of abuse and such explanation did not affect Dr. Kairys's conclusion that the children were telling him the truth. Both children explained they were afraid their family would be torn apart and cited to the physical abuse at the hands of [Harold] that lead to their recantation.

 

An order entered on August 11, 2010 memorialized the trial court's determination. On October 14, 2010, the court accepted Harold's general surrender of his parental rights. This appeal followed.

II.

Harold challenges the Family Part's finding of abuse and neglect as (1) being unsupported by "competent, material, and reliable evidence"; (2) violative of due process because it was based upon "unfounded" and "unsubstantiated" allegations of abuse and neglect; and (3) the product of ineffective assistance of counsel. We disagree with all of these arguments.

Findings and orders rendered by the Family Part are generally entitled to deference due to "'the family courts' special expertise in family matters.'" N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 112 (2011) (quoting N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009)); see also Cesare v. Cesare, 154 N.J. 394, 413 (1998). "[F]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort, Inc. v. Investors. Ins. Co. of Am., 65 N.J. 474, 484 (1974)). The trial court "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand" and "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). Consequently, in reviewing the factual findings and conclusions of a trial judge, an appellate court must "accord deference to the [trial] court's credibility determination . . . based upon . . . [the] opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 616 (App. Div. 2010) (quoting N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007)).

The purpose of fact-finding hearings in a Title Nine proceeding is to determine whether a child is an abused or neglected child2 pursuant to N.J.S.A. 9:6-8.44, not to assign guilt to a defendant. See N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 581 (App. Div. 2010). Under this statutory framework, "the safety of the child shall be of paramount concern." N.J.S.A. 9:6-8.28(a), -8.31(a), -8.32, -8.49. At the fact-finding hearing, DYFS must prove, by a preponderance of the evidence, that there has been an act of abuse or neglect committed by the parent or other person charged with a legal duty of care for the minor child. N.J.S.A. 9:6-8.46. If the facts are sufficient to sustain the complaint, the court enters an order finding that the child is abused or neglected and sets forth the grounds for such a finding. See N.J.S.A. 9:6-8.50(a). The judge "must articulate, with particularity, the facts upon which a determination of abuse and neglect is made" and "clearly identify all documentary exhibits relied upon in reaching his or her decision." See N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002). We conclude that the trial judge made the necessary articulation.

Harold contends that the trial judge erred in "failing to address the girls' numerous recantations of prior sexual allegations." He further argues that "[t]he trial court made findings that the girls' testimony 'appeared to be truthful and consistent' but never subjected this testimony to meaningful testing." We find no merit in this contention.

As we have noted, our jurisprudence is clear: "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding,' and the conclusions that flow logically from those findings of fact, rather than engaging in second-guessing." N.J. Div. of Youth & Family Servs. v. I.S., 422 N.J. Super. 52, 69 (App. Div. 2011) (quoting Cesare, supra, 154 N.J. at 413). Here, the court held a four-day fact-finding hearing in order to determine if there was any competent evidence of abuse or neglect. Upon review of the record, we are satisfied that the trial court fully assessed the reliability and competency of the testimony heard, and properly weighed the documentary evidence presented, in finding that sexual abuse as defined in Title Nine occurred.3

As the trial judge noted in his written opinion, "[p]art of the procedural safeguards involve taking testimony from the alleged abused or neglected child." Pursuant to Rule 5:12-4(b), a Family Part judge has discretion to enter orders allowing a child's testimony to be "taken privately or in chambers or under such protective orders as the court may provide." The trial judge's decision to conduct these in camera examinations was proper and unremarkable. Those interviews afforded the trial judge the appropriate opportunity to assess the children's credibility. See N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 168-70 (App. Div. 2003).

Harold further contends that the trial court's reliance on Dr. Kairys's testimony was error. He argues that in order to make a finding that he sexually abused his daughters, "the trial court had to find independent evidence that corroborated the allegations because the girls' statements alone did not satisfy the statutory standard." We disagree. Harold's argument is not persuasive because it ignores the broad discretion that a trial court has in admitting expert testimony. See Carey v. Lovett, 132 N.J. 44, 64 (1993)(the decision of whether to admit expert testimony is "remitted to the sound discretion of the trial court. Absent a clear abuse of discretion, an appellate court will not interfere with the exercise of that discretion"); see also Kuehn v. Pub. Zone, 364 N.J. Super. 301, 321 (App. Div. 2003), certif. denied, 178 N.J. 454 (2004).

Notably, the trial court ruled that Dr. Kairys could not "testify as to any psychological manifestation of the children that were consistent with sexual abuse because he did not conduct a psychological evaluation." However it was noted that he "wanted the girls to be evaluated in a center that would spend more time on those issues." Moreover, the court relied on Dr. Kairys's testimony because of his specific training and experience as well as comprehensive knowledge of medical literature on child sex abuse victims.

On the issue of corroboration, the trial court noted that corroborative evidence does not need to relate directly to the alleged abuse. We agree. Such evidence need only provide support for the out-of-court statements supporting the allegations. See Z.P.R., supra, 351 N.J. Super. at 436. In Z.P.R. we specifically stated that "[i]t 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." Id. at 435.

The trial court found that Teresa and Gabriela were truthful and that their testimony was consistent with their prior allegations. The corroborating witness presented by DYFS was found to testify "in a straightforward manner" and was "credible in her detailed testimony."

On the contrary, "[d]espite the defense's gallant efforts," the trial court found that "nearly all of [Harold's] witnesses lacked credibility." In pertinent part, the court found the following:

Harold's ex-wife testified that she blamed Teresa and Gabriela for "the end of [her] marriage . . . [and] [s]he showed clear animosity towards [Gabriela] and [Teresa]."

 

Harold's mother "had a clear bias in testifying on behalf of her son."

 

A former neighbor who testified "appeared to be under the influence of some type of substance, although she denied it" and was "extremely emotional, shaky and clearly unstable throughout her testimony."

Next, Harold argues that the trial court erred in relying on "unfounded" and "unsubstantiated allegations" of abuse and neglect, thus violating his right to due process. As a threshold matter, the issue was not raised in the Family Part, which Harold concedes. Where a party fails to raise an objection before the trial court, we will generally not address the claim. See State v. Robinson, 200 N.J. 1, 20 (2009) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Nevertheless, the very nature of Title Nine proceedings is of public importance because it relates to the welfare of children. Accordingly, we will address this issue on appeal.

Harold contends that the "trial court failed to follow the law as set forth by our Supreme Court in [New Jersey Division of Youth and Family Services v. P.W.R., 205 N.J. 17 (2011)]." The Court in P.W.R. held that "[t]he trial court erroneously used the [unfounded] claim as support for its findings of physical abuse." Id. at 36, n.15. Such reliance on an unfounded claim was deemed to be an abuse of discretion. Ibid. Unlike the circumstances in P.W.R., however, the trial court did not rely on the unfounded allegations. On the contrary, the court exclusively relied on the live testimony presented at the fact-finding hearings and Harold's grievance is wholly unfounded.

Moreover, Harold ignores the requirement of Rule 5:12-1(e) that all relevant DYFS reports and any other relevant reports must be provided both to the court and to counsel for all parties. If we were to accept Harold's broad standard, then it would be probable that the Family Part would be required to dismiss every Title Nine complaint that referred to unfounded or unsubstantiated allegations, causing nearly all such protective services complaints to be invalidated.

Harold's final argument on appeal is that he received ineffective assistance of counsel throughout the proceedings. This claim is wholly without merit.

Rule 2:9-1(c) provides that Harold must establish that "a genuine issue of material fact on the issue of the representation provided by trial defense counsel" exists. Rule 2:10-6 requires Harold's brief to "set forth the factual basis for asserting that trial counsel's performance was deficient and explain why the result would have been different had the lawyer's performance not been deficient." Harold does not satisfy either requirement.4

Harold's sole claim of ineffective assistance of counsel is premised on his attorney's failure to object to the "obviously inadmissible evidence related to the 2006 and 2007 charges" as supposedly dictated by P.W.R.. Not only does Harold not make a complete and proper argument for ineffective assistance of counsel but he overlooks the fact that his trial counsel had no legal basis to object to the inclusion of such charges into the trial record. Furthermore, as we have already noted, the trial judge did not rely on those charges in reaching his conclusions.

In New Jersey Division of Youth and Family Services v. B.R., 192 N.J. 301, 307 (2007), the Court set forth the following two prong test for appellate review of an ineffective assistance of counsel claim:

(1) Counsel's performance must be objectively deficient; i.e., it must fall outside the broad range of professionally acceptable performance; (2) counsel's deficient performance must prejudice the defense; i.e., there must be a reasonable probability that but for counsel's unprofessional errors, the result of the proceedings would have been different.

Objecting to the inclusion of prior allegations would not have yielded a different conclusion to the fact-finding proceedings. The trial judge relied on the in court testimony and evidence proffered at the fact-finding hearings. Our review of the record reveals that Harold's counsel vigilantly and zealously advocated for him. Counsel made timely objections during the proceedings including objecting to Dr. Kairys's supposed net opinion. Counsel also cross-examined all of DYFS's witnesses (including submitting questions for Gabriela's and Teresa's in camera examination), as well as putting on a thorough defense by presenting four witnesses on Harold's behalf. There is no basis to warrant a remand for further fact-finding on the performance of Harold's trial counsel.

III.

In summary, we affirm the Family Part's order finding abuse and neglect. The trial court's findings were based on the record and its conclusions of law were soundly anchored in the applicable statutory and decisional law. The ultimate determination in this matter did not result from any ineffective assistance of counsel.

Affirmed.

1 A "Dodd removal" refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act N.J.S.A. 9:6-8.21 to -8.82. See, N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010).

2 "'Abused or neglected child' means a child less than 18 years of age whose parent or guardian, as herein defined . . . (3) 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. 9:6-8.84,

 

Sexual abuse means contacts or actions between a child and a parent or caretaker for the purpose of sexual stimulation of either that person or another person. Sexual abuse includes: a. the employment, use, persuasion, inducement, enticement or coercion of any child to engage in, or assist any other person to engage in, any sexually explicit conduct or simulation of such conduct; b. sexual conduct including molestation, prostitution, other forms of sexual exploitation of children or incest; or c. sexual penetration and sexual contact as defined in N.J.S.A. 2C:14-1 and a prohibited sexual act as defined in N.J.S.A. 2C:24-4.

 

4 These rules expressly apply only to Title Thirty proceedings. However, the correlative rule, Rule 5:12-7, does not contain such limiting language. We note that because Harold has not appealed the Title Thirty aspects of the case his claims of ineffective assistance of counsel may be moot. In the interest of completeness, however, we elect to address them.