NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.V.

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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NOT FOR PUBLICATION WITHOUT THE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.

M.V.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF D.V., a minor.

__________________________________

October 8, 2014

 

Submitted September 30, 2014 Decided

 
Before Judges Fasciale, Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-06-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Celeste Dudley-Smith, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Alicia Y. Bergman, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.V. (Sean Lardner, Designated Counsel, on the brief).

PER CURIAM

Defendant appeals from an April 12, 2012 order finding that he sexually abused his daughter, D.V.,2 when she was between the ages of six and twelve years old, in violation of N.J.S.A. 9:6-8.21c(3). We affirm.

The judge conducted a fact-finding hearing for four days between December 2011 and April 2012. The Division produced testimony from Dr. Jamila Irons-Johnson, who the judge qualified as an expert in the field of psychology with specialized knowledge in Child Sexual Abuse Accommodation Syndrome ("CSAAS"), and Samantha Crawford, a Division caseworker. Defendant called as his witness Dr. Richard Klein, also qualified by the court as an expert in the field of psychology. D.V. testified on her own behalf. The parties admitted into evidence various documents,3 along with a June 10, 2011 DVD of D.V.'s attempted recantation. We discern the following facts from the evidence adduced at the fact-finding hearing.

In February 2011, D.V. had been communicating with her cousin, who lived in Georgia. D.V. decided that "she [could not] hold it anymore" and told her cousin that defendant had sexually abused her. On February 8, 2011, additional family members learned about this disclosure, confirmed it with D.V., and then D.V's aunt contacted the Division to make a referral.

Crawford and another caseworker, Jackie Trainor, visited D.V. at the home of a relative (the "relative") and interviewed D.V. on the day of the referral. D.V., who was then sixteen years old, told Trainor that defendant started sexually abusing her when she was approximately six years old. D.V. explained that the abuse continued until she was twelve years old, when her mother walked into a room where defendant had been attempting to have intercourse with her. The caseworkers stopped the interview when they noticed D.V. becoming visibly upset. They contacted the police, who talked to D.V. privately that night. D.V. gave the police the same statements that she expressed to the caseworkers.

On February 15, 2011, D.V. gave a statement to Detective Michael Gonzalez. She provided more details about the abuse stating that she had "wanted to report that [defendant] raped [her] when [she] was younger." She explained that defendant would "touch [her] breasts and butt" when she was six years old, and that he began having sexual intercourse with her when she was ten years old. D.V. repeated to the detective that the sexual abuse ended when her mother walked in on them. D.V. added that her mother then sought guidance from the pastor of their church.

On March 22, 2011, Detective Brian O'Malley from the Prosecutor's Office interviewed D.V., where she again repeated the same allegations. At this point, D.V. had been living with the relative, rather than staying at home with her parents. D.V. told the detective that she did not expect her cousin from Georgia to tell anyone about the abuse.

On April 11, 2011, Crawford talked to D.V. at school. At this time, D.V. was still living with the relative. D.V. did not offer any new facts about the sexual abuse. D.V. explained, however, that she was sad and wondered whether she had done the right thing by telling the cousin about the abuse.

On June 3, 2011, the Division learned that the police arrested defendant a few days earlier and charged him with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2.4 D.V. then returned home and on June 10, 2011, the same day that the court entered a restraining order against defendant, D.V. went to the Prosecutor's Office and attempted to retract her statements and drop the charges against defendant. Although initially claiming that she had fabricated the allegations to move out of her parents' home, D.V. revealed that she was feeling pressured by her mother, that D.V. was concerned about the loss of financial support for her brothers if defendant remained in jail, and that D.V. was worried about defendant's health issues while he was incarcerated.

Dr. Jamila Irons-Johnson testified that five guideposts secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and recantation (also known as retraction) help identify if a child has CSAAS. She explained that CSAAS is used strictly for treatment purposes to explain certain behaviors exhibited by sexually abused children and not to diagnose whether a child has been sexually abused. According to the doctor, children often recant in an attempt to fix the disruption brought by their disclosure. The doctor testified that certain hypothetical behaviors, similar to D.V.'s, comported with the delayed disclosure and recantation categories, but she also cautioned that she was not making specific conclusions about D.V. since she had not spoken to D.V. in person.

D.V. testified that she fabricated the allegations so that she could move out of her home. She explained, however, that she had not expected things to get this far. D.V. added that she just "want[ed] everything to go back to normal."

At the conclusion of the fact-finding hearing, the judge issued an oral decision followed by a written opinion. The judge found D.V.'s in-court recantation to have "no credibility" and that "[h]er testimony in court was indicative of a child victim of sexual abuse blaming herself for causing problems." The judge wrote

It is obvious that [D.V.] was feeling the guilt and responsibility for the enormous disruption her assertions about sexual abuse had triggered. . . .

Her recantations are obviously due to the pressure she has been feeling. She feels like a villain instead of an innocent victim of her father's grossly offensive actions.

[D.V.] is an example of [CSAAS] which was the subject of expert testimony during the trial.

I find the evidence is overwhelming that [defendant] sexually abused [D.V.] under our law, N.J.S.A. 9:6-8.21(c)(3).

The judge added that D.V.'s February 15, 2011 statement to the police

contain[s] specific and detailed information and supports the credibility of the allegations. [It's v]ery difficult to read that statement and not conclude that this abuse actually happened. It has details. There's no reason for her to make up the details such as that [the mother] walked in on them[,] went crazy, [and] started throwing things[. And] then [there's] the people who were called in from the church. These details don't give any credence to the later recantation that [D.V.] has felt compelled . . . to try to make all the problems go away.

On appeal, defendant argues that (1) D.V.'s allegations of abuse were not corroborated pursuant to N.J.S.A. 9:6-8:46a(4) and therefore cannot form the basis of the judge's finding of abuse; (2) the judge failed to give adequate consideration to the recantation evidence; (3) the judge mistakenly relied on the CSAAS evidence to conclude that defendant had sexually abused D.V.; and (4) the Division otherwise produced insufficient evidence of abuse.

We accord substantial deference to the Family Part's fact finding due to its "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). This is especially so when, like here, "'the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). The trial court "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand" and "has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). Therefore, the trial court's findings "will only be disturbed if they are 'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

I.

We reject defendant's contention that there was insufficient evidence of corroboration as required by N.J.S.A. 9:6-8.46a(4).

In a Title 9 proceeding, "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." N.J.S.A. 9:6-8.46a(4). "Thus, a child's hearsay statement . . . may not be the sole basis for a finding of abuse or neglect." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). While the most effective types of corroborative evidence are eyewitness testimony, confessions, admissions, or medical or scientific evidence, "corroborative evidence need not relate directly to the alleged abuser, it need only provide support for the out-of-court statements." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002).

While much of the Division's evidence derives from statements by D.V., there is sufficient corroboration in the record to support those statements. D.V. maintained the same detailed allegations to her cousin, Crawford, Trainor, the police, and Detectives Gonzalez and O'Malley over a four-month period; she became "visibly upset" when speaking about the abuse; and D.V.'s claim that the mother sought out the church rather than reporting defendant is corroborated by Crawford's testimony that the mother insisted on D.V. going to the church instead of counseling. Crawford's testimony regarding the church is buttressed further by the pastor going to the home and speaking to the mother. As a result, there is sufficient corroboration found in the consistency of D.V.'s allegations, her fragile emotional state when describing the abuse to the cousin, law enforcement, and the Division caseworkers, her subsequent behavioral issues, and also in the level of detail and nature of the allegations.

II.

We are also not persuaded by defendant's contention that the judge failed to give adequate weight to D.V.'s recantations, which defendant argues were just as credible as D.V.'s out-of-court allegations.

The judge meticulously summarized the evidence in both his oral and written opinions before finding D.V.'s out-of-court allegations to be more credible than her in-court recantation. He determined that D.V.'s videotaped recantation was not credible because of the timing of her recantation shortly after defendant was arrested and because D.V.'s June 10, 2011 statement "acknowledge[d] that the sexual abuse did in fact occur." The judge also found D.V.'s statement to Detective Gonzalez credible due to the nature and level of the details, stating that "[t]here's no [believable] reason for her to make up" such specific allegations. D.V. consistently maintained the same allegations to several different individuals over a four-month period.

III.

Defendant argues that the trial court impermissibly relied on the CSAAS evidence to conclude that defendant sexually abused D.V. We disagree.

Expert testimony on CSAAS may be used to evaluate the credibility of an alleged child victim but not to establish guilt or innocence of the alleged abuser. See State v. J.Q., 130 N.J. 554, 579-82 (1993) (discussing the use of CSAAS). The purpose of the CSAAS evidence is to help explain why sexually abused children delay reporting the abuse or recant. Id. at 579. Expert witnesses must be careful not to opine on whether the child was in fact abused and may not compare the child's behavior to behaviors typical of CSAAS. State v. R.B., 183 N.J. 308, 322-23 (2005). It is the judge who decides whether a recantation is truthful.

Here, the experts testified regarding the theory of CSAAS and gave no opinion as to whether D.V. suffered from the syndrome or was abused. Even when discussing hypotheticals similar to D.V., Dr. Irons-Johnson was extremely careful to state that she could not and would not make specific conclusions as to D.V.

The judge properly used the CSAAS evidence to evaluate D.V.'s credibility. Defendant argues that specific language in the opinion tracks CSAAS language, implying that the court used the CSAAS evidence to establish defendant's guilt. Upon close examination, however, the purportedly controverted language used by the judge clearly pertains to the judge's finding that D.V.'s recantation was not credible

[When] the Law Guardian called her client, [D.V.], to the witness stand. . . . [D.V.] recanted all of her previous allegations of sexual abuse by her father. She stated she made those claims because she was having trouble at home and wanted to go to live with her aunt. She testified to how much turmoil the charges caused her family.

I specifically find [D.V.'s] in-court testimony to have no credibility. Her testimony in court was indicative of a child victim of sexual abuse blaming herself for causing problems.

[The Division offered D.V.'s videotaped statement]. At that time [D.V.] attempted to recant the numerous prior statements about the sexual abuse by her father. At the time of this statement, [defendant] had been arrested and was incarcerated . . . . It is obvious that [D.V.] was feeling the guilt and responsibility for the enormous disruption her assertions about sexual abuse had triggered. This statement even contains acknowledgements that the sex abuse did in fact occur.

Her recantations are obviously due to the pressure she has been feeling. She feels like a villain instead of an innocent victim of her father's grossly offensive actions.

[D.V.] is an example of Child Sexual Abuse and Accommodation Syndrome which was the subject of expert testimony during the trial.

[(Emphasis added).]

Therefore, the judge used the CSAAS evidence to find that D.V.'s recantation was incredible. With the recantations out of the calculus, it was the rest of the evidence that formed the basis of the judge's finding of abuse.

IV.

We therefore reject defendant's contention that the Division produced insufficient evidence to demonstrate that defendant sexually abused D.V. A parent abuses or neglects a child when that parent "commits or allows to be committed an act of sexual abuse against the child." N.J.S.A. 9:6-8.21c(3). In an abuse or neglect proceeding, the Division must prove by a preponderance of evidence that the parent has committed abuse or neglect. N.J.S.A. 9:6-8.46b(1). Here, there is sufficient credible evidence in the record to support the judge's findings.

After careful consideration of the record, we are satisfied that defendant's remaining argument lacks sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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

2 D.V. was born in 1994.

3 These documents include a Division screening summary and investigative summary, dated February 8, 2011; multiple Division contact sheets dated February 9, 2011; D.V.'s statements to the police and assistant prosecutor, dated February 16, 2011 and March 22, 2011 respectively; and a transcript of D.V.'s statements recorded on the DVD.

4 The record does not reflect the disposition of the criminal charges.