OF YOUTH AND FAMILY SERVICES,1 v. M.A. and I.B IN THE MATTER OF IS.B N.B A.B., M.B. and IL.B Minors

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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-01024-11T4

A-1026-11T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

M.A. and I.B.,

Defendants-Appellants.

__________________________________

IN THE MATTER OF IS.B., N.B.,

A.B., M.B. and IL.B.,

Minors.

_______________________________________________________________

 

Argued June3, 2013 Decided August 14, 2013

 

Before Judges Sabatino and Maven.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-0524-11.

 

T. Gary Mitchell, Deputy Public Defender, argued the cause for appellant M.A. (Joseph E. Krakora, Public Defender, attorney; Mr. Mitchell, of counsel and on the briefs; Beatrix W. Shear, Deputy Public Defender, on the briefs).

 

Gregory K. Byrd, Designated Counsel, argued the cause for appellant I.B. (Joseph E. Krakora, Public Defender, attorney; Mr. Byrd, on the brief).

 

Nancy R. Andre, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Andre, on the brief).

 

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

 

Christopher A. Huling, Designated Counsel, argued the cause for minor A.B. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Huling, on the brief).

 

Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for minors IS.B., IL.B. and N.B. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Vance, on the brief).

 

PER CURIAM

 

In these consolidated appeals,2 defendants M.A. (Mary)3 and I.B. (Ivan) appeal from a Family Part determination that they abused and neglected their seventeen-year-old daughter, M.B. (Monica). The judge found the child was harmed as the result of repeated acts of sexual assault by Ivan that Mary should have known was occurring but did not prevent, and by Mary's alleged threats to report Monica to federal immigration authorities if she did not recant her accusations. We affirm the findings against Ivan but conclude that the evidence presented against Mary was insufficient to support the finding of abuse and neglect as to her and reverse.

I.

We glean the facts in this matter from the record evidence. Monica was born in September 1993 in Honduras to Ivan and Mary, and the family relocated to the United States when she was ten years old. Monica has four younger siblings, all of whom lived in the home.

This matter was first brought to the attention of the Division of Youth and Family Services (Division) on May 17, 2011, by a police officer responding to allegations of sexual assault. Specifically, Monica accused Ivan of engaging in oral, vaginal, and anal intercourse with her. The pastor of Monica's church contacted the police after learning of the sexual assaults from Monica's boyfriend, in whom Monica had confided. The matter was assigned to Division caseworker Dyann Blackwell (Blackwell).

Blackwell interviewed Monica and her family members at their residence. Mary denied any knowledge of the sexual abuse. She stated that she and the other children had been in Honduras for two months, having returned in mid-April. Monica did not go with her because she was in school, though Mary did not explain why the other school-aged children were able to go.

Monica told the caseworker that when she was fifteen, she revealed to her parents that she had sex with her boyfriend and they made her break up with him. From that time onward, Ivan began talking to Monica about sex, telling her that he could teach her how to have sex the right way, how to be a good wife, and "guide her through everything." He initiated these conversations with her while they were alone and eventually manipulated Monica into allowing him to perform oral sex on her. This first incident occurred in Monica's bedroom when no one else was home. The abuse escalated to vaginal intercourse and, on one occasion, anal intercourse. When Monica told him that the anal intercourse was painful, Ivan reportedly became angry with her. During the assaults, Ivan did not wear a condom.

When interviewed by Blackwell, Ivan did not deny the assaults. He claimed Monica had asked him about what an orgasm was, and when he felt he could not adequately describe it, Ivan claimed he asked Monica if he could perform oral sex on her. He admitted that he performed oral sex on Monica multiple times. He further admitted that he had sexual intercourse with Monica twice without protection and attempted to have anal intercourse as well. He claimed he had only done it "because she asked" him. On one occasion, Ivan had an orgasm while engaging in vaginal intercourse by accident and spilled semen on Monica's leg. Despite knowing that what he was doing was wrong,4 Ivan insisted that he was only teaching his daughter and denied that it was for his pleasure.

On May 26, 2011, Marita Lind, M.D., with the New Jersey CARES Institute examined Monica. As Monica told Dr. Lind about the sexual assaults, she also disclosed that her father had taken pictures of her and showed her pornography. The assaults had occurred not just at their home, but also at Ivan's workplace. When Monica learned about inappropriate touching in school, she had told Ivan that she planned on telling Mary about the abuse. He said that Mary would not believe her.

As a result of the abuse, Monica reported vaginal bleeding and a burning sensation when urinating. The last assault occurred around two weeks before the Division became involved on May 17, 2011. Dr. Lind found no physical signs of sexual abuse and determined that Monica was not pregnant.

Dr. Lind asked whether Mary found out about the sexual assaults at any point, to which Monica replied that Mary "looked mad whenever [Ivan] hugged me." Monica expressed concerns about her mother threatening to call immigration authorities once she turned eighteen years old, as well as taking away her phone and telling her that she could not see her boyfriend anymore. Monica stated, "My mom knows what happened. But she is on my dad's side. She is telling me to change my story. I would like to live somewhere else." Dr. Lind recommended that Monica consult with a mental health professional.

The same day, May 26, 2011, Monica reported to the Division that she felt uncomfortable returning home because of her mother. Monica revealed that her mother was telling her to recant her testimony and threatened her with deportation. Mary had reminded her that when she turned eighteen, the authorities could deport her. As a result, the Division caseworker determined that Monica could not remain with her mother and initiated an emergency removal, placing Monica in an approved resource home.

On May 31, 2011, the court considered the Division's verified complaint requesting custody, care and supervision of Monica and sought an order granting care and supervision of her younger siblings.5 The court found that removal of Monica was necessary due to the allegations of sexual assault by Ivan and the reported pressure by Mary upon Monica to recant her allegations. The judge also placed the other children under Division supervision,6 suspended Ivan's visitation rights with Monica, and ordered the parties to return to court on June 17, 2011.

On June 17, 2011, the judge ordered that Monica remain in Division custody and the other children remain supervised.7 The court granted the Division's request for expedited fact-finding hearings before Monica turned eighteen in September so that she could apply for United States citizenship. The court ordered the Division to provide discovery to Ivan and Mary within ten days.

The court held two separate fact-finding hearings. The proceeding for Mary was held on September 8, 2011. The court addressed a motion, filed on Monica's behalf, seeking a specific order declaring, essentially, that the Monica is a ward of the State. That order would support a "special J-status application," prepared on Monica's behalf by the Rutgers Immigration Law Clinic, to permit her to remain in this country beyond age eighteen. The law guardian8 urged that all fact-finding had to be completed before Monica's eighteenth birthday and explained that to qualify for special J-status there had to be adverse findings against both parents under Title 9. Counsel for the Division, as well as legal representatives from the Rutgers Immigration Law Clinic, supported the proposed immigration application and the motion.

Next, at Mary's request, and by consent of the parties, the court accepted into evidence two records, P-1, the Division's investigation report, and P-2, the New Jersey CARES Institute evaluation report. Mary's counsel rested her case solely on those documents without presenting testimony or argument and stated: "I believe after you [the court] review those documents, you will see why I rest. I take no position." The Division did not present any witnesses. The judge rendered an oral decision ruling that:

[T]his child has been abused by the father over an extensive period of time, something that a mother should have been made aware of or should have, with any reasonable anticipation, would have been made aware of.

 

Now, the child readily admits of asking questions to both mother and father of a . . sexual nature and communicates these concerns of things that she doesn't understand and mother, apparently, ignores the child and allows the father to . . . comply . . . or give the detailed explanation.

 

. . . .

 

So, with this long abusive relationship, the child is forced to put up with[] . . . the mother, who . . . supports the father. She comes in and threatens the child that if she doesn't withdraw[] the statement from -- these allegations about the father, that . . . the mother is going to have her deported to Honduras.

 

And while the mother's involvement is substantially less, it . . . doesn't eliminate the mother attempting to force the child to recant, asking the child to change her story. . . . In addition, there's some specific information that . . . the mother threatens to call immigration [authorities] if she doesn't . . . recant.

 

. . . .

[W]hile, again, [Mary's] involvement is secondary, [the abuse was] occurring with [her] knowledge. . . .

 

While a lot of the facts are . . . not clear to the [c]ourt, this [c]ourt doesn't have a full record, there is no question in this [c]ourt's mind that [Mary] has abused and neglected the child . . . through her lack of supervision, her lack of guardianship to the child, very specific provisions in the definition here of abuse and neglect. And I find that the record is established by the clear and convincing evidence that is presented by these two documents. . . .

 

The court also addressed discovery issues pertaining to Ivan, ordering the Division to provide his counsel all outstanding discoverable materials. Notwithstanding Ivan's objections to scheduling the hearing on short notice and without the complete discovery, the judge set the next hearing on Ivan's matter for September 14, 2011, noting that the risk of deportation for Monica was "as serious as the death penalty."

On September 14, 2011, Ivan's fact-finding hearing included the testimony by Blackwell and the two records previously admitted at Mary's hearing. Blackwell testified about Ivan's abuse stating that Ivan admitted to having intercourse with Monica on two occasions. Ivan's counsel offered neither witness testimony nor evidence to contradict Blackwell's statements. During his closing argument, counsel for Ivan argued that Dr. Lind's report offered no indications of physical assault, such as bruises, abrasions, or lesions. The judge refused to take judicial notice of the insinuation that the intact hymen was a sign that no sexual intercourse had taken place, as the defense had not put on any medical testimony to corroborate this implication. Further, the judge ruled that Dr. Lind's report was "neutral" because it could neither confirm nor deny the sexual assault based solely on the physical indications. Additionally, defense counsel questioned whether Ivan, as a non-native English speaker, understood what he was admitting to when the Division caseworker interviewed him. Again, the judge rejected this argument, ruling that Blackwell had provided credible testimony that proved that Ivan confessed to abusing Monica and could converse in English, albeit to a limited degree.

Following the hearing, the judge rendered an oral decision against Ivan, and entered six orders, including those relevant to this appeal. With regard to Mary, the order provided that:

[Mary] abused and neglected the child in that she was aware that her daughter [Monica] was being sexually abused by the defendant [Ivan] who resided in the same home and she did not take any action to prevent the abuse or intervene and failed to protect her daughter. And for other reasons stated on the record.

 

The court also determined that the Division proved that Ivan had sexually abused Monica by clear and convincing evidence. Lastly, the judge terminated litigation because Monica would turn eighteen the following day and the other children were safe.

On appeal, both defendants challenge the sufficiency of the evidence of abuse and neglect. In addition, Ivan argues that the Division prejudiced him by failing to provide timely discovery and impugned his right to remain silent.9

II.

The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). Factual findings that undergird a trial court's judgment should not be disturbed unless "they are so wholly insupportable as to result in a denial of justice," and should be upheld whenever they are "supported by adequate, substantial and credible evidence." In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)).

"Where the issue to be decided is an alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting J.T., supra, 269 N.J. Super. at 188-89). "Despite such circumstances, deference will still be accorded the trial judge's findings unless it is determined that they went so wide of the mark that the judge was clearly mistaken." Ibid.

N.J.S.A. 9:6-8.21(c)(4), in relevant part, defines an "abused or neglected child" as

a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by 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 ofthe court.
 

"The fact-finding hearing is a critical element of the abuse and neglect process." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002). The Division 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(b). Therefore, the judge's determination must be based on competent reliable evidence. Ibid. "[T]his critically important part of the business of the Family Part demands meticulous adherence to the rule of law." J.Y., supra, 352 N.J. Super. at 265.

We begin by affirming the court's finding of abuse and neglect against Ivan, as that determination was clearly supported by the record that includes Ivan's admission of the sexual contact with his daughter and his subsequent conviction for those offenses.10 Any claims raised by him in this appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Turning now to Mary's challenges to the judge's findings of abuse or neglect, she argues that they are unsupported by the evidence and that they improperly focus on the child's uncorroborated inferences of Mary's knowledge of Ivan's wrongdoing and allegations of her threats against Monica. We agree, concluding that the evidence presented did not support the conclusion that Mary, in fact, knew of the abuse when it was occurring or that the evidence, even if viewed through a suitably broadened focus, disclosed a risk of substantial harm to the child as the result of Mary's own alleged conduct.

At the outset, it appears that the issues raised by Mary on appeal largely stem from the informality and the hastiness of the proceedings in this case, notwithstanding the noble objective that was being sought for Monica. Hence, a sense of urgency heavily permeated the proceedings, perhaps because of the Division and the law guardians' desire to have the court expeditiously substantiate abuse and neglect and thereby qualify Monica for the special J immigration status. Unfortunately, by moving so swiftly, the court rendered an adverse decision against Mary without sufficient support in the record. Top of Form

The only evidence presented to provide content and context to the allegations against Mary was the Division report and the New Jersey CARES report; there was no sworn testimony and thus, no opportunity for the trial judge to make admissibility or credibility findings regarding the statements contained in those documents. Except for Ivan's clear admission of repeated sexual contact with Monica, the many conflicting statements contained in those documents regarding whether Mary knew about the sexual assaults11 or whether Mary made threatening statement could not be reconciled without testimony and an opportunity for the court to assess the credibility of the witnesses. We cite a few illustrative examples of this.

The Division Investigation report, P-1, included several contradictory statements about Mary's knowledge of Ivan's acts of abuse, or her lack of such knowledge. These include: Monica's statement to the effect that she was going to inform her mother of the abuse, but her father told her that that her mother would not believe her; Mary broke down in tears when she was told; that the prosecutor's investigator told the Division Mary was unaware of the sexual abuse; Mary repeatedly denied that she knew of the sexual abuse; Ivan denied that his wife was aware of his actions or that he told her; Monica denied telling her mother about the sexual activity between her and her father but said that her mother should have known by the way that her father hugged her. These many conflicting assertions within P-1 were never clarified or reconciled by any witness's testimony, nor did the court's bench opinion address the inconsistencies.

The NJ CARES report, P-2, likewise reflects conflicting statements by Mary and Monica regarding what Mary may have known about the abuse. For example, P-2 indicates that Mary told Dr. Lind that "My daughter told the police and the police told me that there was a problem." On the other hand, Dr. Lind asked Monica, "Do you think your mother knew it was happening"? Monica responded, "She looked mad whenever he hugged me." P-2 further indicates that Monica also told Dr. Lind that her mother told her that "if you would have told me instead of the police I would have talked it out." Monica informed Dr. Lind and the Division caseworker that Mary instructed her to recant her allegations or Mary would call immigration authorities when she turns eighteen years old. These inconsistencies within the report were never reconciled, and Dr. Lind did not testify.

The conflicting statements presented here could not permit the trial court to make findings with any certitude. Even assuming for the sake of discussion that Mary had indeed told Monica to retract her statements, the evidence was nonetheless insufficient as to Mary to establish harm to the child, and would not support a finding of abuse and neglect. The court's finding that Mary had made threatening statements to Monica was not accompanied by an assessment of the extent of the risk that such threats actually would have been carried out.

N.J.S.A. 9:6-8.21(c)(4)(b) does not permit a judicial finding of abuse or neglect premised on the existence of a risk alone. The risk must be "substantial." Ibid. In some situations, the seriousness of the risk posed by parental conduct can be immediately perceived, and thus a focus solely on events precipitating a referral is appropriate. However, in the present situation involving words by Mary that could be interpreted as threatening harm in the future, but not involving any accompanying threatening conduct, the seriousness of the risk cannot be fairly evaluated by focusing on the words alone at the time of their utterance. Both an evaluation of the circumstances giving rise to the words and the actor's prior and subsequent conduct are required in order for a determination to be made whether the perceived threat was an idle one, made in desperation, or whether the threat was a manifestation of a genuine intent to carry out the threatened deeds.

As the record suggests, Mary was evidently shocked and devastated upon learning of the assaults, and Ivan's confession and arrest. Her allegedly threatening statements to Monica, even if they were uttered, may well have been prompted by a concern about the impact that Monica's serious accusations against her husband would have had upon the family, rather than by a desire to cause actual harm to her daughter. Without appropriate testimony placing the alleged threats in a fuller context, a court cannot discern with confidence what truly motivated Mary at that very difficult time, and whether her words fairly can be deemed the infliction of a "substantial" risk of harm upon her child.

Here, the trial court essentially relied upon Monica's claims against her mother, repeating her accusations in the findings of fact without a deeper explanation of whether the mother's statements had actually occurred and, if so, why they represented a substantial risk to the child's welfare. After the assaults were disclosed, Ivan was arrested and detained so there was no further risk of harm from him. From that time until the hearing date in September, Mary did not, in fact, contact the immigration authorities, even though Monica had not recanted her allegations of sexual abuse. Instead, Mary supported the application for the special J status so that Monica could gain citizenship. Given these circumstances, and in light of the limited proof that the Division chose to present against Mary, the record is insufficient to support a conclusion that Monica was harmed or subjected to a substantial risk of harm by Mary's alleged words. The record is inadequate to substantiate that Mary truly sought to harm her daughter, or to carry out a supposed threat to have her daughter deported if she did not recant. Consequently, the finding of Mary's abuse and neglect is not supported by sufficient credible proof, and therefore must be reversed.

For the sake of completeness, we briefly address Mary's evidentiary arguments as to whether Monica's out-of-court statements to Blackwell and Dr. Lind were credible and admissible. In matters involving the alleged abuse and neglect of children, the New Jersey Rules of Evidence are supplemented by statute and court rule. N.J.S.A. 9:6-8.46(a)(4) provides that "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 make a fact[-]finding of abuse or neglect." (Emphasis added). The Division argues that the court could corroborate Monica's statement that Mary knew of the abuse from Mary's behavior during the time of abuse and after the NJ CARES report. The Division also contends that additional corroboration of Monica's allegations of threats and coercion are found in Dr. Lind's report. The record, however, fails to support either argument. The uncorroborated statements of the child victim are the only "evidence" against Mary. Repetition by Monica, without more, is not tantamount to corroboration. The judge did not have a legal or factual basis to determine that Monica's statements were credible or admissible. As such, the judge could not properly rely upon them to support his findings of abuse and neglect.

Top of FormAlthough we determine that the competent evidence in this case is insufficient to support an adverse finding against Mary, we do credit the Division for moving swiftly to protect Monica from this devastating situation, and what appeared at the time to be potential coercion and undue pressure by her mother to recant her accusations. However, when the contested allegations against Mary were thereafter litigated at the hearing, the focus on the child's immigration status unduly hastened the proceedings and appeared to have led to a truncated record lacking the necessary depth or context to justify the conclusions that were attained.

As such, we are compelled to reverse the court's finding of abuse or neglect as to Mary; and the Division is directed to remove the name M.A. from the New Jersey Child Abuse/Neglect Registry.

The finding of abuse and neglect against Ivan is affirmed.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families and renamed the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 We consolidated these appeals for the purpose of sharing transcripts and permitting the parties to file a single responding brief. We now consolidate them for disposition in this opinion.

3 In light of the sensitive issues involved, we refer to all parties by fictitious names. R. 1:38-3(d).

4 Ivan told the worker that he "felt bad and prayed to God" after this incident, though also admitted that it was not the last time that he had sexually assaulted his daughter.

5 The complaint specified the alleged bases for abuse and neglect as follows:

 

[Ivan] has sexually abused the minor child, [Monica], and placed her at serious risk of harm. [Ivan] has engaged in multiple incidents of sexual abuse against his daughter over the last two years. He has recently arrested after [Monica] disclosed the abuse and has admitted to having sexual contact with his daughter. He remains incarcerated at Camden County Jail on [three] counts of sexual assault, [second] degree[,] and endangering the welfare of a child. Investigative findings reveal that [Ivan] is substantiated for sexual abuse, sexual penetration of the minor child, [Monica].

 

[Mary] has failed to protect the minor child, [Monica], and has placed her at risk of harm after attempting to persuade her daughter to recant her allegations of sexual abuse against [Ivan] and after making threats to [Monica's] well-being and safety.

6

Though Monica did not want to return to her mother's custody, her siblings continued to reside with Mary.

7 Initially, all five children were represented by the same law guardian at the May 2011 Order to Show Cause Hearing. The Rutgers Law Clinic then represented the children at the June 2011 hearing. Due to conflicts in that office, separate law guardians were appointed for the balance of the proceedings. On September 8th, Kosha Galla, Esquire appeared for Monica, and Erica G. Smith, Esquire appeared for the other four siblings.

8 Although the record does not identify the law guardian by name, given the context of the discussion, we presume that it was Monica's law guardian speaking.

9 On appeal, the siblings were represented by two separate law guardians who each filed a brief. The law guardian for A.B., the fourteen-year-old son, argues that we should affirm the findings of abuse and neglect as to Ivan, and that we should reverse the findings with respect to Mary. The law guardian for the other three children takes no position as to the findings against Mary; however she urges that we affirm the findings against I.B. due to future safety concerns for the two minor daughters, then aged two and seven years old, who may still reside in the home when Ivan is released from prison.

10 On February 1, 2012, Ivan was indicted on three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(3)(a), and one count of second-degree child endangerment, N.J.S.A. 2C:24-4(a), and Mary was indicted on one count of third-degree witness tampering, N.J.S.A. 2C:28-5(a)(1), and one count of fourth-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(a)(5). In April 2012, Ivan entered a plea agreement whereby he pled guilty to one count of second degree sexual assault and agreed to have no further contact with Monica. Ivan was sentenced to five years of incarceration with parole supervision for life, and ordered to register in accordance with Megan's Law. N.J.S.A. 2C:7-1 to -23 (requiring registration with the State for convicted sex offenders). In July 2012, this Court allowed the law guardian for the three minor children to supplement the record with Ivan's indictment and judgment of conviction.

11 Notably, the complaint did not allege that Mary had prior knowledge of the abuse and failed to prevent it. The judge basing his conclusion on these findings is contrary to N.J.S.A. 9:6-8.50(b).