DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES - v. F.D -

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6189-09T2

DEPARTMENT OF CHILDREN AND

FAMILIES, DIVISION OF YOUTH

AND FAMILY SERVICES,

Petitioner-Respondent,

v.

F.D.,

Respondent-Appellant.

___________________________________________________

August 2, 2011

Submitted May 10, 2011 - Decided

Before Judges Messano and Waugh.

On appeal from a Final Decision by Director, Division of Youth and Family Services, Docket No. AHU 07-553.

Stacy L. Spinosi, attorney for appellant.

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

PER CURIAM

F.D. appeals from the final administrative decision of the Department of Children and Families (DCF), Division of Youth and Family Services (DYFS) that: 1) affirmed the ALJ's initial decision that F.D. sexually abused his daughter; and 2) placed his name on the central registry. N.J.S.A. 9:6-8.11. F.D. raises the following points on appeal:

POINT I. THE TRIAL COURT ERRED BY SUA SPONTE BRINGING A MOTION ON BEHALF OF [DCF] TO QUASH A SUBPONEA [SIC] COMPELLING THE TESTIMONY OF A PRIOR CASEWORKER REGARDING PRIOR ALLEGATIONS.

POINT II. THE TRIAL COURT'S FINDING THAT F.D. COMMITTED REPEATED ACTS OF SEXUAL ABUSE AGAINST A.M.D. WAS UNSUPPORTED BY COMPETENT, SUBSTANTIAL AND WAS [SIC] CREDIBLE EVIDENCE.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

By way of background, F.D. and N.D., the parents of a daughter, A.M.D., and a son, F.D. III, were divorced in September 2005 when A.M.D. was ten-years old. On May 25, 2006, A.M.D. reported to a therapist, Dr. Tracey Adams, that F.D. had been sexually molesting her for the past three or four years. Adams made a referral to DYFS. On July 3, DYFS advised F.D. that its "investigation [of the sexual abuse allegations] determined . . . neglect was substantiated." F.D. requested an administrative hearing.

DYFS also contacted the prosecutor's office. Investigators interviewed A.M.D., F.D. and Adams, on May 25 and 26. Ultimately, on September 5, 2006, the prosecutor's office closed its investigation and referred the matter back to DYFS.

In the interim, the parties' post-judgment disagreements regarding issues in their divorce resulted in ongoing motion practice. In May 2006, N.D. obtained a domestic violence temporary restraining order against F.D. On September 25, they entered into a consent order under the FM docket in which, among other things, the parties agreed to communicate only through counsel, N.D. dismissed her domestic violence complaint, and F.D. agreed to "suspend his parenting time with [A.M.D.] and . . . not go to her home[,] school or any other place she may be until further order."

During pre-hearing proceedings before the ALJ, DCF moved to permit A.M.D. to testify in camera. The request was ultimately supported by the certification of Erika Ryan, Ph.D., a therapist then treating the child. Ryan concluded with "high probability" that testifying in the presence of F.D. would result in "severe [repercussions] and have significant negative impact on [A.M.D.'s] continued treatment." Over F.D.'s objection, the ALJ granted DCF's motion.

The hearing took place on July 20 and December 18, 2009. A.M.D. testified in camera responding to questions posed by the ALJ and counsel.1 Her audio testimony was contemporaneously transmitted to another hearing room where the attorneys and F.D. were present.

A.M.D. was now nearly fourteen-years old. She described incidents of sexual molestation by F.D. beginning when she was six-years old. Among other things, F.D. "kissed [her] all over," including "[her] breasts, [her] . . . privates, . . . [her] whole body." F.D. would remove all his clothes and "put [her] in the shower . . . ." F.D. would not use a washcloth but "would go all over [her] body, go near [her] vagina and . . . would try to make [her] touch him." A.M.D. also claimed that when she was even younger, F.D. had physically abused her and her mother.

N.D. testified about the acrimonious divorce proceedings. A.M.D. began to see a therapist in October 2004 "more or less for the emotional stress and depression and anxiety of the break up of the family." In 2005, she was evaluated at school by a psychiatrist, "Dr. Castile,"2 and diagnosed "with anxiety, depression and [attention deficit disorder]." A.M.D. was prescribed a number of medications to deal with these conditions. A.M.D. never told her mother about F.D.'s sexual abuse prior to her disclosures to Adams, who was N.D.'s therapist. N.D. was aware, however, of the physical and verbal abuse A.M.D. suffered at F.D.'s hands.

On cross-examination, N.D. acknowledged a report from a court-appointed counselor who, during the divorce proceedings, indicated that A.M.D. wanted to spend time with her father, and that F.D. was capable of taking care of the child's needs. She also admitted telling Castile that A.M.D. would "make[] up stories to get attention." N.D. acknowledged that Adams was affiliated with the Center for Family Services (CFFS), and that N.D. first consulted CFFS when experiencing trouble with her older son, who was diagnosed with Asperger's Syndrome, "a type of [a]utism." N.D. denied that A.M.D. was present during her own counseling sessions with Adams; however, she admitted that the child would see other therapists in the same building at the same time.

DCF also called Dr. Martin Finkel as an expert in the field of child sexual abuse. He testified consistently with a report he wrote on June 9, 2006, that was received in evidence.

Finkel examined A.M.D. "independent" of N.D. A.M.D. told Finkel that F.D. "'was taking baths and showers with [her],'" since she was six-years old. A.M.D. told Finkel that "'it . . . stung'" when she urinated. After conducting a physical examination of A.M.D.'s vaginal area, Finkel concluded that any injuries "were superficial and healed without any residual." However, Finkel noted that A.M.D. "complained of a symptom that [wa]s associated with trauma, dysuria." Finkel opined that A.M.D. had been sexually abused. DCF rested after Finkel's testimony.

Adams' July 5, 2006 report was also admitted into evidence. In addition to chronicling the initial revelation made by A.M.D. regarding the abuse, the report detailed a further interview Adams conducted with A.M.D. on May 29, 2006. At that time, A.M.D. said that F.D. would come into her room at night while N.D. was out and "squirm on top of her." A.M.D. also claimed that F.D. performed cunnilingus on her.

F.D. called S.W., an associate pastor at the church F.D. and his family attended, as a witness. A.M.D. was a student at the parish school, and S.W. frequently saw her interact with her father. He thought their relationship was "very healthy," that A.M.D. was not the victim of any kind of abuse, and that F.D. was not "the type of person to have sexually assaulted his daughter."

F.D.'s eighteen-year old stepdaughter, A.G., and his twenty-one-year old son, F.D. III, testified. A.G. knew A.M.D. for some time because the D. family and the G. family were close friends before F.D. and N.D. divorced. F.D. never acted inappropriately toward A.G, she never saw him act inappropriately toward A.M.D., and she never knew of F.D. helping A.M.D. in the shower.

F.D. III testified that A.M.D. was "torn" by their parents' separation and divorce. N.D. would blame the family's difficult financial situation on F.D., and tell the children "how bad of a person [F.D.] [wa]s." F.D. III never saw his father act inappropriately toward his sister. Neither A.G. nor F.D. III, however, had seen A.M.D. or N.D. for several years.

F.D. testified and denied ever physically or sexually abusing A.M.D. He stopped helping A.M.D. with showers and baths in 2001 when she turned six-years old. F.D. described an incident that occurred around the same time in which N.D.'s brother sexually assaulted F.D. III "[a]t the YMCA." F.D. claimed that his son told A.M.D. about the incident.

F.D. acknowledged that after the divorce, A.M.D. visited him and his new wife in May 2006. The family was rushing to get ready for a birthday party. A.M.D. asked him to help wash her hair while she showered. F.D. helped and also washed "her chest." He "didn't think nothing of it, because she was . . . so young." F.D. denied touching "her 'private areas.'" On cross-examination, however, F.D. admitted telling the prosecutor's investigators that he washed "around" A.M.D.'s vagina and "butt."

F.D. described the family's prior relationship with DYFS which "was called . . . to our house for so many different things . . . ." The caseworker, Tina Brown, became well-known to the D. family. According to F.D., Brown came to the house on one occasion to investigate an allegation that A.M.D. "was scared of [him]." A.M.D. told Brown that "'[her] mother told [her] to tell [Brown] all these things.'" According to F.D., A.M.D. was "a storyteller."

The ALJ issued his written initial decision on June 3, 2010. After exhaustively reviewing the testamentary and documentary evidence, the ALJ noted that either A.M.D. or F.D. "is lying, and, in order to determine the facts in this matter, [he] must determine which of them is lying by assessing their credibility." A.M.D. "was clear, concise and . . . responsive to the questions that were asked of her." The ALJ noted, however, that "F.D. also appeared credible."

The ALJ reviewed the testimony of the other witnesses "to discern the truthfulness of [A.M.D.] and F.D." There was "only limited evidence of F.D.'s untruthfulness in the record," and "[t]he evidence concerning [A.M.D.'s] untruthfulness d[id] not establish a pattern of untruthfulness so as to discredit her testimony." The ALJ credited Finkel's "testimony and opinion," as well as "the statements made by [A.M.D.] to the DYFS caseworker and . . . Adams in 2006" which "contain[ed] graphic details [that] have the aura of truth."

The ALJ made eight specific factual findings that credited A.M.D.'s claims of sexual molestation by F.D. over the course of several years. He concluded, "F.D. committed repeated acts of sexual abuse against [A.M.D.]."

F.D. filed no exceptions. In its final decision of June 30, 2010, DCF found the ALJ's initial decision "to be thorough and well-reasoned." It affirmed the finding of sexual abuse and ordered F.D.'s name to be placed on the central registry. This appeal followed.

II.

We state some general principles regarding the statutory framework. "When DYFS receives information concerning alleged child abuse or neglect, it is authorized to take both administrative and judicial action. Under N.J.S.A. 9:6-8.11, DYFS is required to forward any report of child abuse or neglect to the Central Registry within seventy-two hours." Div. of Youth & Family Servs. v. D.F., 377 N.J. Super. 59, 64 (App. Div. 2005). Although "all reports of findings forwarded to the child abuse registry" are confidential, disclosure is permitted to a wide array of individuals and agencies. N.J.S.A. 9:6-8.10a. Therefore, "[i]f DYFS finds based on its internal investigation that a charge of child abuse or neglect has been 'substantiated,' any person whose name is placed in the Central Registry is entitled to a trial-type hearing to challenge this finding." D.F., supra, 377 N.J. Super. at 64; accord N.J. Div. of Youth & Family Servs. v. M.R., 314 N.J. Super. 390, 425 (App. Div. 1998) (Eichen, J.A.D., concurring).

Such a hearing is conducted before the [Office of Administrative Law] as a "contested case" . . . . If the finding of child abuse or neglect is upheld, the person's name remains in the Central Registry. But if the administrative hearing results in a determination that the child abuse or neglect charge has not been substantiated, the person's name must be immediately removed from the Central Registry.

[D.F., supra, 377 N.J. Super. at 65-66 (citations omitted).]

The burden of proof in such administrative hearings is the "preponderance of the evidence standard." In re Allegations of Sexual Abuse at E. Park High Sch., 314 N.J. Super. 149, 168 (App. Div. 1998).

We apply well-known standards in reviewing DCF's decision.

In reviewing final decisions of a State administrative agency we must defer to an agency's expertise and superior knowledge of a particular field. We are thus bound to uphold the agency's decision unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record. That being said, our appellate obligation requires more than a perfunctory review. We are required to engage in a careful and principled consideration of the agency record and findings[.]

[A]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference. Nonetheless, that deference is tempered by the well-established principle that an agency's legal interpretation is in no way binding on us.

[Dep't of Children & Families, Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 509 (App. Div.) (alterations in original) (citations and quotations omitted), certif. granted, 204 N.J. 40 (2010).]

(a)

F.D. served a subpoena upon Tina Brown prior to the second day of the hearing, but she failed to appear. When the ALJ asked F.D.'s counsel for a proffer regarding Brown's expected testimony, she responded:

Tina Brown has personal, firsthand knowledge of this family. After the parties separated or divorced, [A.M.D.] made allegations of physical abuse against her -- by her father. Tina Brown was the investigator into the allegations, and it is my understanding that Tina Brown is going to testify that she took the information . . . conducted her investigation, and, during the course of her investigation, that the child said that the allegations were not true and that her mother told her to say the things.

The Deputy Attorney General representing DCF noted Brown was on vacation. Nonetheless, he lodged an objection, claiming any records of earlier DYFS investigations were "confidential" pursuant to N.J.S.A. 9:6-8.10a, and his objection was "the same as to the testimony."

The ALJ correctly observed that records of child abuse investigations could be disclosed "upon [the OAL's] finding that access to such records may be necessary for determination of an issue before it." N.J.S.A. 9:6-8.10a(b)(6). Noting that Brown's testimony was offered to impeach A.M.D.'s credibility, the ALJ viewed the proffer as N.J.R.E. 404(b) evidence, and applied the four-prong analysis the Court set forth in State v. Cofield, 127 N.J. 328 (1992). He concluded the proffered evidence was not admissible. When F.D.'s counsel indicated there was no other reason for Brown to be called as a witness, the ALJ sua sponte quashed the subpoena.

F.D. contends that the ALJ erred in concluding Brown's testimony was inadmissible because the proffer should have been analyzed under N.J.R.E. 404(c), which provides: "Evidence of a person's character or trait of character is admissible when that character or trait is an element of a claim or defense." The ALJ's sua sponte decision to quash F.D.'s subpoena was, therefore, prejudicial and requires reversal of DCF's decision. We disagree.

The ALJ properly noted that in a contested case, N.J.A.C. 1:1-15.1(b) requires evidentiary rulings "shall be made to promote fundamental principles of fairness and justice and to aid in the ascertainment of truth," the Rules of Evidence do not bind the parties, N.J.A.C. 1:1-15.1(c), and "[a]ll relevant evidence is admissible." Ibid. Nonetheless, we cannot quarrel with his decision to use the Rules of Evidence as a guidepost, and, indeed, F.D. does not argue otherwise.

While evidence of a character trait, in this case, A.M.D.'s character for truthfulness, may be relevant, there has been a general and longstanding prohibition against the use of "specific instances of conduct" to prove "a trait of character." N.J.R.E. 608(a). In State v. Guenther, 181 N.J. 129 (2004), however, "the Court created a narrow exception to N.J.R.E. 608 . . . to permit a defendant to attack a victim's credibility by presenting evidence of a prior false accusation." State v. A.O., 397 N.J. Super. 8, 28 (App. Div. 2007), aff'd and modified on other grounds, 198 N.J. 69 (2009). Application of this exception is limited "to cases in which the victim-witness' credibility '[i]s the central issue in the case.'" Ibid. (quoting Guenther, supra, 181 N.J. at 156). N.J.R.E. 608 was amended by the addition of a new subparagraph (b), which provides,

The credibility of a witness in a criminal case may be attacked by evidence that the witness made a prior false accusation against any person of a crime similar to the crime with which defendant is charged if the judge preliminarily determines, by a hearing pursuant to Rule 104(a), that the witness knowingly made the prior false accusation.

[N.J.R.E. 608(b) (emphasis added).]

The amendment was specifically adopted to reflect the Court's holding in Guenther. Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 608 (2008).

Even by analogy, the narrow exception provided by N.J.R.E. 608(b) to defendants in criminal cases in inapposite to the facts in this case. F.D. claimed Brown would testify that A.M.D. made a prior false accusation of physical abuse, which was investigated and found to be unsubstantiated by DYFS, and A.M.D. told the DYFS worker that N.D. told her to make the false accusation. The alleged prior false accusation was, in short, dissimilar to the facts at issue before the ALJ. The discretionary decision to exclude the evidence, and quash the subpoena, does not provide any basis for reversal.

(b)

In his second point, F.D. argues that DCF's decision was not supported by "competent, substantial and credible evidence." We find the argument to be of insufficient merit to warrant extensive discussion. R. 2:11-3(E).

F.D. correctly notes that pursuant to N.J.S.A. 9:6-8.46(a)(4), "previous statements made by [a] child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." He claims that A.M.D.'s statements to Adams and to the prosecutor's office were uncorroborated and cannot be the basis for DCF's determination.

This overlooks, of course, the actual testimony A.M.D. gave at the hearing, as well as Finkel's medical corroboration of the abuse. F.D. has highlighted the inconsistencies in the testimony of both, but, given our standard of review, such a contention does not provide any basis for reversal. See, e.g., Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)) (requiring us to consider "'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility"). DCF's decision was not "arbitrary, capricious, or unreasonable," nor did "it lack[] fair support in the record." K.A., supra, 413 N.J. Super. at 509.

1 Also present was the judge's law clerk and a "big sister" from the "Big Brother/Big Sister" program.

2 The doctor's actual name is Edwin F. Castillo, a child and adolescent psychiatrist.