NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. T.T.

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NOT FOR PUBLICATION WITHOUT THE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 YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

T.T.,

Defendant-Appellant,

and

T.R.-T.,

Defendant.

IN THE MATTER OF

D.R., O.R., A.T. and T.T.,

Minors.

June 20, 2014

Submitted June 3, 2014 Decided

Before Judges Ostrer and Carroll.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-391-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Mary Potter, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorneyfor respondent (Alaina M. Antonucci, Deputy Attorney General, on the brief).

PER CURIAM

Defendant T.T. appeals from a Family Part order, entered after a fact-finding hearing, that he had sexually abused his stepdaughter, O.R., when she was between the ages of ten and twelve. Defendant also appeals from the denial of his motion to vacate the fact-finding order that he filed after the State dismissed associated criminal charges against him. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The Division became involved with this family in February 2011, when it received a referral stating that then twelve-year- old O.R. disclosed in her personal journal that defendant, her stepfather, sexually abused her. O.R. also expressed suicidal ideations. Division intake worker Beatrice Gabriel testified at the fact-finding hearing that she met with O.R., her mother, and other siblings to investigate the allegations. O.R. informed Gabriel that the abuse began when she was ten years old. Defendant told her to "ride the pony," i.e., to "ride" his private area. The abuse progressed over time, and after she turned eleven, defendant began to insert his penis into her private area. When O.R. turned twelve, defendant began inserting his finger into her private area and fondling her.

As a result of O.R.'s disclosures, the Hudson County Prosecutor's Office was contacted, and she was interviewed by a detective from the Special Victim's Unit (SVU). Gabriel observed the interview, and testified that O.R.'s disclosures to the detective were consistent with those previously imparted to Gabriel.

Gabriel testified that O.R. also reported a suicide attempt approximately a year earlier, in February 2010. O.R. described this as an attempt to hang herself using sheets in her bedroom. However, she did not actually go through with the attempt out of concern for her mother.

On cross-examination, Gabriel indicated that O.R. had not previously disclosed the abuse to other family members. Also, O.R. wrote of the alleged abuse in her journal "the day after she had a major fight with her stepfather." O.R. had been disrespectful toward defendant during their verbal argument and, as punishment, she was removed from the volleyball team. O.R. had previously been disciplined in December 2010, resulting in her cell phone being taken away.

To corroborate O.R.'s allegations of abuse, the Division relied on the expert testimony of Dr. Anthony D'Urso, section chief and supervising psychologist at the Audrey Hepburn Children's House, a regional child abuse facility at Hackensack University Medical Center. In conjunction with Dr. Candice Hudson, Dr. D'Urso conducted a psycho-social evaluation of O.R. at the Hepburn facility. Dr. D'Urso concluded that O.R.'s allegations of sexual abuse were clinically supported. He based this conclusion on a number of factors, including (1) O.R., a child between ages ten and twelve, had explicit sexual knowledge; (2) O.R. made distinctions between touch and penetration; (3) she provided idiosyncratic details, such as defendant informing her the vaginal penetration would hurt; (4) the general consistency of O.R.'s disclosures;2 and (5) the alleged abuse coincided with a deterioration of O.R.'s academic performance. She also experienced a decline in her emotional functioning, causing her to be hospitalized and diagnosed as having posttraumatic stress disorder, and placed on medication.

Dr. D'Urso noted that a physical examination of O.R. had not revealed any medical evidence of abuse. However, that finding was consistent with "95 cases out of 100 where sexual abuse is alleged to have occurred . . . ."

Neither O.R. nor defendant testified at the October 31, 2011 fact-finding hearing, and defendant presented no witnesses or evidence. At the conclusion of the hearing, the court found that the Division met its burden of establishing by a preponderance of the evidence that defendant committed acts of sexual abuse against the child. The judge determined that O.R.'s statements were consistent when she spoke to the Division worker, the SVU detective, and the psychologist. Morover, any inconsistencies "[did] not negate the overwhelming evidence of a more likely than not standard that she was sexually abused."

The trial court further noted that Dr. D'Urso's expert testimony was uncontroverted, and established clinical support for O.R.'s allegations. The judge rejected the defense theory that O.R.'s allegations were fabricated due to her recent quarrels with defendant that had resulted in O.R. being disciplined. Rather, the judge found "there's no indication that [O.R.] made this up," and "the fight may have been a stimulus for her - - the last straw for her to disclose it."

Defendant had been indicted on criminal charges associated with O.R.'s allegations during the pendency of these proceedings. However, as the assistant prosecutor was preparing the criminal case for trial, O.R. and her mother presented the prosecutor with a videotape in which O.R. recanted her allegations of abuse. Consequently, the State moved to dismiss the indictment. On February 23, 2012, the Criminal Part dismissed the indictment, without prejudice in the event O.R. should renew her allegations in the future.

Defendant, who had previously been barred from the home and any contact with O.R., was allowed to return home with the consent of the Division on October 16, 2012.3 Also, defendant moved to vacate the October 31, 2011 fact-finding order, predicated on O.R.'s recantation.4

The court held a hearing on defendant's motion on January 3, 2013, at which defendant called the assistant prosecutor as a witness. The prosecutor explained that in late February 2012, after O.R., accompanied by her mother, presented the videotape, she and a detective then spoke privately with O.R. Ultimately, O.R. stated the abuse "did, in fact, happen, but she just wanted to put this behind her, she didn't want to testify, and she was feeling pressured about the case."

Notwithstanding the prosecutor's testimony, defendant urged the court to vacate its prior order. Defendant argued that O.R's recantation, and her recantation of that recantation, undermined her credibility and the consistency of her statements upon which the court had heavily relied in reaching its fact-finding determination.

In denying defendant's motion, the court noted the more substantial burden of proof in criminal cases, and found that the State dismissed the indictment because O.R. declined to testify. The judge continued to find Dr. D'Urso's earlier testimony "compelling," noting:

[a]nd Dr. D'Urso testified that in addition to the consistency, he found that there was a degree of [] psychological certainty [] - - the allegations were clinically supported based on statements that were detailed an[d] also the decline of the child's emotional and academic behavior and a diagnosis of Posttraumatic Stress Syndrome which all would indicate that she was sexually assaulted or that there was some sort of sexual abuse.

So based on all of that, I don't find that the alleged recantation would negate my [] findings.

Defendant appeals the trial court's orders. Essentially, defendant argues that the findings of sexual abuse were not supported by substantial credible evidence, lacked corroboration, and that O.R. herself recanted her allegations in the videotaped statement she provided to the prosecutor. For the reasons that follow, we disagree.

Our Supreme Court has set forth the standards that govern our review of abuse or neglect matters as follows:

[A]ppellate courts defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record. Indeed, we recognize that [b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.

[N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (second alteration in the original) (citations and internal quotation marks omitted).]

"[I]f there is substantial credible evidence in the record to support the trial court's findings, we will not disturb those findings." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010). However, "if the trial court's conclusions are 'clearly mistaken or wide of the mark[,]' an appellate court must intervene to ensure the fairness of the proceeding." Id. at 227 (alterationin original)(quoting N.J.Div. ofYouth &FamilyServs. v. E.P., 196 N.J. 88, 104 (2008)). We owe no deference to the trial court's legal conclusions, which we review de novo. State v. Smith, 212 N.J. 365, 387 (2012) (citations omitted), cert. denied, __ U.S. __, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).

An "abused or neglected child" means, in pertinent part, a child under the age of eighteen whose parent or guardian "commits or allows to be committed an act of sexual abuse against the child." N.J.S.A. 9:6-8.21(c)(3). The trial judge has a duty to conduct a fact-finding hearing to determine whether the Division has proved such abuse or neglect "by a preponderance of the competent, material and relevant evidence . . . ." N.J. Div. of Youth & Family Servs. v. C.H., 428 N.J. Super.40, 62(App. Div.2012). "Under the preponderance standard, a litigant must establish that a desired inference is more probable than not. If the evidence is in equipoise, the burden has not been met." Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (citations and internal quotation marks omitted).

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, as defendant concedes, O.R.'s statements were 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 that the statements are corroborated.

In finding abuse, the trial judge specifically determined that O.R.'s various statements made to Gabriel, the SVU detective, and Dr. Hudson were consistent in describing the details of the sexual abuse. Further, the judge found that any inconsistencies were insufficient to negate the "overwhelming evidence" that O.R. was sexually abused. Support for this conclusion is also found in the expert report of Drs. D'Urso and Hudson, who similarly noted that "[O.R.] provided a consistent disclosure regarding being sexually abused by her stepfather, [T.T.], from [ten] to [twelve] years of age during the psychological evaluation and during her interviews with [the Division] and the SVU." Further, in Dr. D'Urso's experience, it is "very rare" that a child in describing such sexual abuse is "absolutely consistent."

As noted, a finding of abuse and neglect cannot be sustained solely on "previous statements made by the child relating to any allegation of abuse and neglect," without further corroboration. N.J.S.A. 9:6-8.46(a)(4). In this case, O.R.'s statements were corroborated by her psycho-social evaluation and Dr. D'Urso's unrebutted expert testimony in which he concluded that a number of factors combined to clinically support O.R.'s claims of abuse. See N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002) (noting that the corroborative evidence "need only provide support for the out-of court statements").

Finally, contrary to defendant's argument, we ascribe little significance to O.R.'s videotaped recantation of her earlier consistent accounts. We note that in presenting that recorded statement to the prosecutor, O.R. was accompanied by her mother, defendant's wife. When questioned privately, O.R. described feeling "pressured," and admitted that the abuse had in fact occurred. In denying defendant's motion to vacate the fact-finding order, the trial judge noted that O.R.'s statement that she would not testify in the criminal action "diminishe[d] [the State's] ability to prove their case." However, the State's decision to dismiss the indictment for that reason did not undermine the court's earlier finding that O.R. was abused. The court's decision was consistent with O.R.'s earlier statements and her subsequent explanation to the prosecutor, and also with Dr. D'Urso's expert testimony, which the trial judge continued to find "compelling."

1 Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

2 Dr. D'Urso described it as "absolutely very rare when a child [is] absolutely consistent."

3 At the October 16, 2012 compliance review hearing, Family Service Specialist Sharell Parker explained that the Division was "comfortable with [defendant] returning to the home at this point."

4 Defendant submitted a supporting certification stating that he "continue[d] to deny that [he] sexually abused [O.R.]." However, defendant did not testify at the ensuing January 3, 2013 hearing.