NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

A.D.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF

M.H., N.H., and M.H.,

Minors.

___________________________________

June 6, 2014

 

Argued March 26, 2014 - Decided

 

Before Judges Fuentes, Simonelli, and Fasciale.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-94-12.

 

Anastasia P. Winslow, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Winslow, on the brief).

 

Ann Avram Huber, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Huber, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd Wilson, Designated Counsel, on the statement in lieu of brief).

PER CURIAM

At all times relevant to this case, defendant A.D. was the paramour of B.H., the biological mother of three children, M.H. ("Millicent"),1 born in 2002, N.H. ("Neil"), born in 2003, and M.H. ("Marisol"), born in 2005. This appeal arises from a finding by the Family Part that A.D. sexually abused Millicent when she was nine years old. The molestation occurred in an apartment in Paterson that A.D. shared at the time with Millicent's mother2 and her two younger siblings.

Defendant argues the trial judge: (1) improperly admitted into evidence under N.J.R.E. 803(c)(27) untrustworthy, inculpatory statements Millicent allegedly made to certain medical professionals and other individuals involved in the investigation of the case; (2) erred in admitting uncorroborated out-of-court statements allegedly made by Millicent to her mother; (3) abused his discretion by refusing to interview Millicent in camera, or alternatively permitting a psychiatrist or other mental healthcare professional to interview Millicent and report the findings to the court; (4) erred by not excluding as a "net opinion" the testimony of pediatrician Dr. Albert Sanz, in which he opined it was highly unlikely that the severe vaginal trauma sustained by Millicent in this case could have been the result of self-injurious acts; and (5) made factual findings not supported by the competent evidence in the record.

We reject these arguments and affirm. The trial judge properly found that A.D. sexually abused this young girl after he had assumed a quasi-parental role as her mother's live-in paramour. The Division of Child Protection and Permanency (Division) presented sufficient evidence to support the trial court's findings. Given the clandestine nature of child sexual abuse, it is not unusual that the witnesses presented by the Division may not have actually seen the abuse as it occurred. Their testimony corroborated the victim's account of events through well-established exceptions to the hearsay rule. The trial judge was also entitled to credit as trustworthy Millicent's description of what A.D. did to her through the testimony of the healthcare professionals who testified at trial under N.J.R.E. 803(c)(27). Finally, the medical evidence describing the severity of the sexual trauma endured by this young girl graphically corroborated the nature of the abuse and rebutted A.D.'s assertion that the injuries were self-inflicted.

I

Millicent does not have contact with her biological father. Her family, consisting of her mother B.H. and two younger siblings Neil and Marisol, first came to the Division's attention on June 19, 2006. Since then, the Division has responded to at least fourteen referrals alleging various forms of parental neglect, including lack of supervision, substance abuse by the adults who were responsible for the wellbeing of these children, and unsanitary living conditions. Although most of those referrals were later deemed unsubstantiated, they nevertheless describe a domestic environment permeated by dysfunction and instability.

In 2008, Millicent (then six years old) and her brother Neil (then five years old) were sexually molested by a man the Division described as a "family friend" who was at the time a registered sex offender. The Division substantiated this incident of abuse on November 17, 2008. The records made available to us in this appeal do not include any direct evidence describing the details of the nature of the sexual abuse perpetrated by this individual against either Millicent or Neil.3

The incident that triggered the chain of events that eventually brought this case before the Family Part began on September 14, 2011. On this day, the Principal of Millicent's school reported to the Division that Millicent had told the school counselor that her mother's paramour A.D. had sexually molested her the previous day (which was Tuesday, September 13, 2011). Millicent also claimed A.D. had molested her on other occasions. According to the counselor, Millicent had not disclosed the abuse to her mother or her therapist because she was afraid of how her mother would respond.

Division records indicate Millicent was under psychiatric care and had been receiving psychotherapy in connection with the sexual abuse incident in 2008. Her mother accompanied Millicent to the therapy sessions. According to the school counselor, Millicent feared her mother would "hit and punch her" if she returned home after disclosing she had been sexually abused by her paramour. The counselor indicated "the child disclosed" that her mother had hit her when she made similar allegations against A.D. "in the past." The Division caseworker advised the school counselor to find out if school records contained an emergency contact person, other than the mother, who could assist Millicent in this situation. If not, the counselor should report the incident to the police if the Division caseworker did not arrive before the school's dismissal time at 2:20 that afternoon.

The Division formally referred the matter to the Passaic County Prosecutor's Office and directed the school authorities not to permit Millicent to return home on the school bus. B.H. and Millicent were transported to the Prosecutor's Office where both the mother and child were interviewed by investigators from the sex crimes unit. Division records show that the prosecutor's investigator concluded that nine-year-old Millicent was able to name and identify all of the relevant sexual parts of her anatomy, but denied that anyone had "touched her." When asked whether she had told her school counselor about A.D. touching her private parts, Millicent stated she only spoke to the counselor about "her anger," not about being touched. According to Division records, when pressed by the investigator to distinguish between a truth and a lie, Millicent stated "she no longer wanted to talk."

Millicent returned home with her mother and siblings that day. However, at the urging of the Division, A.D. agreed to reside with a relative until the allegations could be completely investigated. The following day, September 15, 2011, Millicent refused to get off the school bus after arriving at school. The school counselor contacted the Division to report that Millicent had been temporarily placed "in the time-out room"; she had also "expressed wanting to kill herself, and others." Division records show that Millicent was being treated by a psychiatrist and had been diagnosed as suffering from depression and a mood disorder. She was also receiving services and psychiatric medication from the St. Joseph's Mental Health Clinic. Millicent's treating psychiatrist recommended that she be evaluated at the Audrey Hepburn Children's House (Audrey Hepburn) for an updated diagnosis.

Based on its investigation, the Prosecutor's Office discovered A.D. had had numerous encounters with the criminal justice system, including convictions for possession of illicit narcotics, burglary, and receiving stolen property, for which he was placed on probation for three years commencing in May 2009. A.D. had also been charged in 2004 with first degree aggravated sexual assault of a child between the age of thirteen and sixteen years old. He was not prosecuted on this charge after a Grand Jury found insufficient evidence to indict. Based on Millicent's recantation and the lack of any other evidence, the prosecutor declined to take the matter any further; the Division also deemed the allegations of molestation unfounded at that time.

On November 15, 2011, Millicent was diagnosed with post-traumatic stress disorder (PTSD) by mental health staff at Audrey Hepburn. In a report from Audrey Hepburn authored by a Licensed Clinical Social Worker and a Clinical Psychologist, these mental health care professionals indicated Millicent had "flashbacks" about the man who raped her in 2008. Concerning the allegations she made about being sexually molested by A.D. on September 13, 2011, and whether her recantation was trustworthy, the authors of the report made the following observations:

[Millicent] denied that she is physically or sexually abused at this time. She stated that she does not receive corporal punishment by her mother. She further indicated that she was not inappropriately touched by [A.D.], her mother's paramour. She attributed her allegations of sexual abuse involving [A.D.] to having flashbacks of past sexual abuse by [the family friend]. The concern is that [Millicent] has recanted her allegations to DYFS and the [Prosecutor's Office], as well. She may have recanted her allegations due to the nature of her mother's relationship with [A.D.] [The mother, B.H.] explained that she is planning on marrying [A.D.] and that he is very helpful in caring for her and her children.

 

Furthermore, since [Millicent] has a history of behavioral and mental health difficulties, she may be unable to sustain her allegations which may be discounted due to her history of psychiatric and behavioral problems. [Millicent] may not feel that she is deserving of receiving emotional support from her mother despite the fact that she stated that she would tell her mother if anyone touched her inappropriately in the future.

 

In the early morning hours of Saturday, November 26, 2011, (eleven days after the observations noted in the Audrey Hepburn report), Millicent was brought into the St. Joseph's Hospital emergency room by her mother and A.D. showing an "extensive deep laceration inside her vagina." The Division received notice of this incident from the hospital staff. According to hospital records:

The patient is a 9-year-old female presented to the pediatric ER after having heavy vaginal bleeding from 1:00 a.m. As mother describes, the bleeding started all of a sudden. Also, talking to the mother, she said that there is a history in the family of abuse of the child with a neighbor who is in jail right now for 30 years. Also, boyfriend [A.D.] is present in the pediatric ER. He has like attention deficit disorder and also bipolar disorder. She had been seen in Hackensack two months ago also suspicious for child abuse. The girl was reporting it, but psychiatric evaluation thought that it is probably part of her psychiatric disorder. At this time talking to the girl, she denies any cramping. She says the bleeding started all of a sudden.

 

. . . .

 

At this point we suspect that the child was abused and the vaginal bleeding was secondary to adult trauma. We talked also to pediatric ER, pediatric attendings. DYFS is going to be involved.

 

A Division caseworker was immediately dispatched to the hospital to interview the two main adults involved, Millicent's mother B.H. and A.D., her live-in paramour. B.H. told the caseworker that Millicent had told her two months earlier that her boyfriend A.D. was "sexually assaulting her but I don't believe her because of her mental health." With respect to the specific medical condition that brought Millicent to the emergency room, B.H. told the caseworker "that around midnight she was awaken [sic] by her boyfriend because of [Millicent] screaming."

B.H. told the caseworker that she was a heavy sleeper. At first she thought Millicent had "a bloody nose." Millicent was already in the bathroom when B.H. saw "there was blood on everything." B.H. said she "put her in the shower to wash the blood away and that is when I saw the blood clots." She called 911 when Millicent began to lose consciousness. The caseworker also interviewed the attending pediatric surgeon who stated Millicent's injuries were consistent with being repeatedly sexually abused. Given the absence of puncture wounds, the doctor also ruled out that the injuries could have been caused by the introduction of an object into the vaginal area. In the doctor's opinion, the soft tissue tear injuries sustained by Millicent were caused "from an object such as a penis moving back and forth."

The nature and severity of the injuries triggered an immediate response from local law enforcement as well as the re-involvement of the Passaic County Prosecutor's Office. B.H. refused to permit local police officers to interview Millicent without her psychiatrist present. B.H. also emphasized that Millicent had made unfounded allegations against A.D. in the past. In a formal statement given to the prosecutor's investigator, B.H. said that Millicent told her after her surgery

that she put [her] 4 fingers up into her vagina. I asked [Millicent] why did she do it and she told me that she was going into flashbacks of when she was molested in 2008 by [the family friend]. When I asked her why she didn't get me, she told me that she was too scared to.

 

B.H. told the investigator that Millicent had tried to hurt herself in February 2011 by setting her hair on fire. She also claimed that Millicent had "a good relationship with [A.D.] and calls him dad and she always says that she feels safe with him."

Although Millicent was medically cleared to be discharged on November 28, 2011, the Division requested St. Joseph's Hospital to place her in protective custody for twenty-four hours. It was the consensus of both the Division caseworker and hospital medical staff that B.H. and A.D. were exerting an undue influence over the child. Millicent was finally discharged from the hospital on November 29, 2011. A Division caseworker transported Millicent and B.H. to the prosecutor's office for another interview.

According to Division records, Millicent told the investigator that "she placed part of the brush, which she identified as the handle of the brush inside her private." She "described that it was bleeding a lot and nasty." Millicent indicated "she was lying on her bed and her legs were straight closed together, and then not really closed." According to Millicent, she was in this physical position when she inserted "the hairbrush into her private." She said the man who had molested her in 2008 told her to do this to herself in her dreams. When the prosecutor's investigator again asked Millicent who had hurt her "private," Division records indicate the child responded: "I did." She then "described that she first put the brush and then her fingers." Millicent insisted that no one at home had hurt her. Millicent finally said that "she was sick of talking about this" with her mother.

At one point during a substance abuse evaluation, the Division caseworker informed B.H. that the Division was removing the children from her care. Millicent was separated from B.H. while the latter underwent a substance abuse evaluation. As time passed, Millicent became extremely emotionally upset and agitated. When the child became inconsolable, the caseworker called for an emergency medical transportation to St. Joseph's hospital for both B.H. and Millicent. Mother and daughter were separated when they arrived at the hospital emergency room at approximately six o'clock that evening.

At two minutes past eight o'clock that same evening, Millicent told the emergency room pediatric physician that she had been sexually molested by A.D. This disclosure was documented in the hospital report:

The patient presents to the emergency department with Emotional disturbance, possible molestation. . . . [Patient] states that [A.D.], the mother's boyfriend, came to her room at 1 am Saturday and, "put his private part in my private part." She was scared to tell anyone about it, recalls having thanksgiving dinner Thursday night w/her mom, [A.D.], her uncle [L], her brother and her sister, denies her uncle [L] ever touching her and does not know if [A.D.] ever touched her brother or sister, states that this is the first time this ever happened, [patient] is very upset, started crying after giving the history saying she wanted her mother. [Patient] was seen in the ED on Saturday, stated that she inserted a brush in her vagina and four of her fingers while she was sitting down at home, was admitted and Dr. Moreno stated she needs to adjust her medications, mother was w/her at the time. Was seen at the prosecutors [sic] office this morning. Dr. Sanz said her story does not match her vaginal exam as her legs needed to be wide open and she stated she was sitting down w/ her legs closed when she inserted the brush, [patient] started throwing a temper tantrum, hitting the walls w/ her hands and head as per DYFS worker Jessica Piedra who states she can not be in foster care because of her current traumatized state and she needs to be under care.

 

[(Emphasis added).]

 

II

At the fact-finding hearing the Division presented the testimony of Dr. Monique Severe, the pediatric emergency room physician who attended to Millicent on November 26, and November 29, 2011. Dr. Severe described the child's medical condition on November 26, and indicated that both B.H. and A.D. were with her during the time before she was rushed into surgery to repair the severe injury to her vagina. B.H. was separated from Millicent on November 29, 2011, when the child accused A.D. of molesting her. Dr. Severe described the child's emotional state on November 29, 2011 as "alert," "angry" and "oriented" to persons around her. The doctor characterized the child's general demeanor as "determined" to being heard.

Dr. Severe testified that while she was examining Millicent she told her: "'He put his private part in my private part. [A.D.] raped me. [A.D.] raped me. " According to Dr. Severe, Millicent explained that she did not tell her what happened when she was first brought into the emergency room on November 26, 2011, because "[she] was scared. I was scared of my mother." On cross-examination, Dr. Severe testified that Millicent was prescribed at least seven medications when she examined her on November 29, 2011. Millicent was also evaluated by a psychiatrist at the hospital who referred her to Hoboken Medical Center to seek further psychiatric care.

The Division also called caseworker Jessica Piedra who testified that on the morning of November 29, 2011, she transported Millicent and B.H. to the Passaic County Prosecutor's Office. Piedra watched the prosecutor's investigator interview Millicent "through video in a separate office." With respect to the injuries, Piedra indicated that Millicent told the investigator that she "had her legs close to one another" when she inserted the brush into her vagina. When asked to elaborate, Piedra indicated the Millicent said:

She -- she had them closed. . . . she was lying on -- on her bed, with her legs straight in front of her, closed. And that she -- at one point, she sat up and she placed a hairbrush inside her private, which referred to -- which was her vagina. Her genital area. And then after the hairbrush, she entered her fingers into her vagina.

 

Q. And can you describe [Millicent's] demeanor during the course of her interview?

 

A. She became increasingly tired and disinterested in the -- in continuing with the interview.

 

After the interview at the prosecutor's office, Piedra transported B.H. and Millicent to the Division's offices in order to conduct a complete drug and alcohol assessment evaluation on B.H.4 At this point, the Division had already decided to remove the children from B.H.'s care and assume legal custody. Piedra testified that Millicent "began inquiring for her mother." According to Piedra, when she explained to Millicent that she would not be returning to her home with her mother, Millicent "became increasingly agitated. She began kicking the cubicle walls and crying loudly. And there was no consoling her." The situation quickly degenerated; Millicent became physically out of control, violently kicking and hitting the caseworker. The Division staff called 911 and the child was transported to the St. Joseph's Hospital emergency room.

Piedra testified that, in addition to the hospital medical staff, she and another Division caseworker were present on the evening of November 29, 2011, when Millicent finally accused A.D. of sexually assaulting her. Piedra testified that Millicent said "he had put his -- his thingy -- thingy inside me? Something in that respect. And when I questioned who, she stated [A.D.] . . . [she] indicated to me that this took place on Saturday [November 26, 2011]." Piedra described Millicent's demeanor as calm.

The Division called Dr. Albert Sanz as an expert witness on pediatric sexual abuse. Dr. Sanz was the pediatrician who examined and evaluated Millicent in the Child Protection Center at St. Joseph's Hospital on November 29, 2011. B.H. was present in the room during the evaluation. Dr. Sanz did not ask Millicent any questions about how the abuse occurred. His inquiry was limited to general questions regarding her medical condition. Dr. Sanz testified that the mother told him Millicent

had done it to herself, and that [she] had taken a hairbrush and then that she had penetrated herself.

 

And that the reason she did this was -- she told me that [Millicent] was having flashbacks. . . . that had to do with a prior incident where she had been abused.

 

Dr. Sanz testified that he found it remarkable that Millicent was not complaining of any pain "because [he] thought with the extent of her injuries, I'd be complaining. But she wasn't." Dr. Sanz did not find "any bruises or any contusions or anything really on the skin on the outer sort of most external part of the genital area." After a closer, deeper examination "into the tissues, it was obvious there was evidence of trauma. There was still some swelling of the area. Some redness of the area." He also found a "complete tear of the hymen" and "there was obviously had been a tear of the vaginal wall."

Dr. Sanz characterized the injuries as "severe penetrating" injuries. When asked to opine as to how these injuries could have occurred, Dr. Sanz testified that the child's legs "must have been in a sort of straddle position to have a situation where all of the trauma is directed, you know, directly at the -- at the opening area." He reached the following conclusion as to nature of the injuries:

In -- in my own mind, looking at everything that I saw and my experience in -- in other cases would be that this is a non-accidental injury, because it doesn't have the characteristics of the usual accidental injuries.

 

. . . .

 

And I also concluded that . . . there's no way I can tell you what penetrated that.

 

. . . .

 

Something obviously penetrated, and with force.

 

. . . .

 

And again, in my, you know, in my opinion and in my experience, I mean, I can't see the child doing this to herself. That -- that's my own very firm conclusion. That I -- I just couldn't understand how a child would do this given . . . her age and -- and given the sensitivity of these tissues at this age[.]

 

[(Emphasis added).]

 

When asked on cross-examination to clarify his reasoning for concluding that she could not have injured herself, Dr. Sanz gave the following explanation:

Actually, what I -- what -- the reason that I thought she hadn't done this was because it's a -- this was a very forceful . . . penetration.

 

. . . .

 

And she could not have done this herself unless she was in a very peculiar state of mind, and . . . I'm not a psychiatrist, but I --

 

. . . .

 

It would have to take some -- some real change in her mental status to do this herself, because there's -- there's so much pain involved. There's no way that this could happen without an incredible amount of pain that most children would not want to do or certainly if -- then they would immediately stop.

 

[(Emphasis added.)]

 

Dr. Sanz opined that her injuries were consistent with penile penetration, although he could not identify the precise object involved.

St. Joseph's Hospital social worker Yesenia Del Valle was the last witness the Division called at the fact-finding hearing. She was employed by the hospital as a screener/crisis counselor at the time of this incident. Del Valle assessed Millicent on November 29, 2011, when the child first arrived at the emergency room at approximately six o'clock that evening. Del Valle testified that she was referred to conduct a crisis interview because Millicent "came in with her DYFS workers and her mom and she was very combative, very agitated, very aggressive. She was screaming. She was crying."

After asking Millicent some preliminary questions intended to make her more comfortable, Del Valle testified she began asking "the questions that I needed to ask her."

Q. And what questions do you need to ask?

 

A. If she knew why she was here. Why she was here.

 

Q. And did you ask [Millicent], did she know why she was here?

 

A. Yes.

 

Q. And what did she respond?

 

A. She . . . told me because of what -- because [A.D.] put his private part in my private part.

 

Q. And that s what [Millicent] said to you directly?

 

A. Yes.

 

Q. Did [Millicent] report any additional information bout [sic] how the incident occurred?

 

. . . .

 

A. She said about after Thanksgiving, she -- she was in her room sleeping and he -- he came into her room. He got on top of her. And he proceeded to put his private part into her private part.

 

Q. And when she said "[A.D.]" (sic), did she refer to anybody specific?

 

A. The mother s boyfriend.

 

. . . .

 

Q. Now, did [Millicent] -- in addition to telling you that this is something that [A.D.] did, did [Millicent] indicate that people were telling her to say different things about the injury?

 

A. Yes.

 

Q. And what did [Millicent] tell you she was being told to say?

 

A. That -- that she had -- that she had caused the bleeding . . . on her own by putting a brush up her vagina, as well as four fingers.

 

. . . .

 

A. She was very, very adamant that she did not do that.

 

Del Valle testified that when Millicent disclosed what A.D. had done to her, "[s]he became very tearful. She kind of curled up into a ball. She didn t -- she became guarded." Millicent also "became angry" when she was asked whether she had injured herself. Del Valle testified Millicent told her that she was previously abused by a family friend in 2008, and that she had "tried to set her hair on fire" because "voices told her to do it" in April 2011. Millicent denied experiencing any visual or auditory hallucinations at the time Del Valle conducted her evaluation in November 2011.

Based on this evaluation, Del Valle concluded Millicent was "definitely going through some sort of trauma and "felt at that point it was just best to hospitalize her, because she was being aggressive and combative. She kept screaming for her mom." Millicent was later transferred to the Hoboken Medical Center. Del Valle also testified that she also spoke with B.H. about Millicent's allegations. B.H. insisted, however, that Millicent had inflicted the injury to herself by using a hairbrush and her fingers.

A.D.'s defense consisted of a character witnesses who testified to having had dessert on Thanksgiving with the family, which included Millicent and her siblings. The witness claimed he saw A.D. acting "normal," and performing the role of the "head of the family." This character witness admitted, however, to having "a bit extensive [criminal record] starting when I [w]as a juvenile. Mostly drug charges, possession of drugs, robbery, violations of probation and parole." Overruling A.D.'s objection, the court admitted into evidence a recording of an interview of A.D. conducted by an investigator from the Passaic County Prosecutor s Office on December 2, 2011.

Against this record, the trial judge found the Division had met its burden of proving, by a preponderance of the evidence, that A.D. sexually molested Millicent. The judge's findings were qualitatively based on Millicent's credibility. Based in large measure on the nature and severity of the injury, the judge simply stated: "I don't believe that [Millicent] did this to herself." In reaching this conclusion, the judge relied on the medical evidence provided by the Division through Dr. Sanz's testimony.

And I base that on Dr. Sanz's report and Dr. Sanz's testimony that for her to have done this to herself would have been so painful, especially in light of her age, it would have been so painful to the inside of her vagina that she could not have done this to herself. In addition to not being able to put her into a physical position that she could do that to herself.

 

The judge also rejected as not credible A.D.'s testimony denying his involvement in the molestation.

III

We begin our analysis of the legal issues raised in this appeal by reaffirming the applicable standard of review. As our Supreme Court has made clear, appellate courts must afford particular deference to factual findings made by Family Part judges because they are presumed to have "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). We thus "afford great deference to the Family Part's findings of fact and conclusions of law based on those findings." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009) (citing N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

This deferential standard of review is particularly appropriate when the trial court's findings are largely based on the credibility of witnesses. N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We should defer to the trial court unless its findings went "so wide of the mark that our intervention is required to avert an injustice." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 427 (2012).

Notwithstanding these principles of review, factual findings in abuse and neglect cases must be based on relevant, competent, and reliable evidence. N.J.S.A. 9:6-8.46(b). The fact-finding hearings must also adhere to fundamental rules of evidence and must be conducted with the formality and decorum we expect from any other adjudicative proceeding. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264-65 (App. Div. 2002).

Against this legal backdrop, we are satisfied the record supports the trial court's findings. As the medical evidence presented by the Division established, the injuries sustained by this nine-year-old girl could not have been self-inflicted. Once this aspect of the case is ruled out, the circumstances surrounding this child's emotional state explain her initial vacillation about whether A.D. had in fact molested her. Millicent's emotionally fragile relationship with her mother and her mother's own dependence on A.D. also explain why this little girl would initially conceal this terrible secret.

The circumstances that led to Millicent's statements inculpating A.D. were also properly admitted by the trial court under N.J.R.E. 803(c)(27). This rule of evidence provides a hearsay exception for a child's statements relating to sexual misconduct committed against them. The rule provides that certain statements made by a child, such as Millicent, shall not be excluded on the basis of hearsay:

A statement made by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding if (a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse; provided that no child whose statement is to be offered in evidence pursuant to this rule shall be disqualified to be a witness in such proceeding by virtue of the requirements of Rule 601.

 

[N.J.R.E. 803(c)(27).]

 

Here, defense counsel moved to exclude Millicent's out-of-court statements from evidence arguing the statements were inconsistent and uncorroborated. Because counsel had not sought to exclude this evidence before the start of the fact-finding hearing, the trial judge decided, with defense counsel's consent, to wait until all of the evidence on this issue had been presented before making a final ruling on the motion. Although as a matter of best practices, counsel should have moved to exclude this evidence before the start of trial, we discern no reversible error in the approach adopted by the court here.

Our acceptance of the approach adopted by the Family Part here is obviously heavily influenced by the trial judge's ability to compartmentalize his roles as a professional jurist on legal matters, and as the trier of the facts in this Title 9 proceeding. We nevertheless caution both counsel and the bench that the better practice would have required a determination of the admissibility of this evidence before the commencement of the fact-finding hearing. Indeed, if this had been a jury trial, the admission of this evidence without first conducting an N.J.R.E. 104 hearing to determine whether the statements were admissible would have constituted grounds for reversing the conviction. State v. D.G., 157 N.J. 112, 128 (1999).

A.D. nevertheless argues that Millicent's statements on November 29, 2011, should have been excluded as untrustworthy. He describes Millicent as "an emotionally troubled girl," who was separated from her mother not long after an interrogation during which her truthfulness was questioned by adults, who also suggested to her A.D. had in fact assaulted her. According to A.D., Millicent's emotional breakdown and insistence to be reunited with her mother made her statements to the Division workers untrustworthy under N.J.R.E. 803(c)(27).

The Division argues that Millicent's earlier recantations were the product of the emotional pressure placed on her by both A.D. and her own mother. According to the Division, this child was terribly afraid to tell the truth based on her mother s reactions to her previous allegations of sexual abuse. Once Millicent was relieved of this daunting emotional pressure, she felt safe and enabled to finally reveal the truth.

Unfortunately, the trial judge did not make any direct findings concerning Millicent's statements on November 29, 2011. We do know, however, that the judge found credible the testimony of the medical professionals who were present when Millicent stated that A.D. had sexually assaulted her on November 26, 2011, and had come into her room and placed "his private part into her private part." Given this foundation of credibility of the statements made by these medical professionals, and the medical testimony of Dr. Sanz concerning the nature and extent of the injury, we are satisfied that the judge's omission to explain the basis of this key determination is not fatal to the ultimate finding that the Division established, by a preponderance of the competent material and relevant evidence, that Millicent was abused by A.D., as defined in N.J.S.A. 9:6-8.21. See J.Y., supra, 352 N.J. Super. at 265.

It is also well-settled that in matters involving the alleged abuse of children, our rules of evidence are supplemented by statute and court rules. N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003). Here, Millicent's statements were also admissible under N.J.S.A. 9:6-8.46(a)(4), which permits the admission of previous statements made by the child relating to any allegations of abuse or neglect provided the statements are corroborated. In this case, Millicent's statements were corroborated by the circumstances that led to her admission to the hospital as well as the nature of the injuries she sustained as explained by the expert medical testimony. See N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 437 (2002).

The balance of A.D.'s arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). With respect to A.D.'s argument challenging the court's decision to decline to interview Millicent in camera, we briefly note that this child has gone through more physical and emotional trauma in her short life than most men and women endure in an average adult lifetime. We thus discern no abuse of discretion in the judge's decision to spare this nine-year-old, emotionally fragile little girl from any further official inquiry, as well as prevent that she submit to any further psychiatric examination unrelated to a legitimate therapeutic purpose or her emotional wellbeing. Cf. N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 183-84 (App. Div. 2005).

Affirmed.

 

 

1 All of the names used here are fictitious to protect the privacy of the children and other innocent parties whose identities may be inadvertently revealed or rendered discoverable by association with other parties or witnesses.

2 The Family Part also found B.H. abused and neglected Millicent by failing to protect her from being sexually abused by her paramour. The case against B.H. is not part of this appeal.

3 From this limited record, we have inferred this man was criminally prosecuted and convicted of committing sex offenses involving these two children. From comments made by B.H. to healthcare professionals and law enforcement investigators, (as well as information reflected in other parts of the record), it appears this man received an aggregate sentence comprised of consecutive terms of imprisonment for serious crimes committed against the two individual children/victims.

4 B.H. had previously disclosed to Division workers that she and A.D. had smoked marijuana on Thanksgiving in her bedroom while the children were also present in the home. B.H. indicated she believed her uncle was also home and willing to supervise the children at the time.