NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.M.

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NOT FOR PUBLICATION WITHOUT THE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-Appellant,

v.

S.M.,

Defendant-Respondent.

_________________________________

IN THE MATTER OF K.M. and K.M.,

Minors.

__________________________________

Argued Telephonically September 22, 2014 Decided October 10, 2014

Before Judges Reisner, Koblitz and Haas.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-0350-10.

Jessica M. Steinglass, Deputy Attorney General, argued the cause for appellant (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Steinglass, on the brief).

Jeffrey Einhorn (Law Offices of Jeffrey Lichtman) of the New York bar, admitted pro hac vice, argued the cause for respondent (Brooke M. Barnett and Associates, P.C., and Mr. Einhorn, attorneys; Mr. Einhorn and Mr. Lichtman, on the brief).

Timothy R. Stoesz, of the Indiana bar, admitted pro hac vice, argued the cause for intervenor Guardian ad Litem (Gillespie, Gillespie& Jablonski,and Mr.Stoesz, attorneys, join in the brief of respondent S.M.).

Lauren Humphrey, Assistant Deputy Public Defender, argued the cause for minors K.M. and K.M. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Melissa R. Vance, Assistant Deputy Public Defender, of counsel; Ms. Humphrey, on the brief).

PER CURIAM

This appeal is the latest chapter in extended litigation over S.M.'s attempt to adopt twin girls.1 We reviewed the litigation's history in an earlier opinion remanding the case to the trial court. N.J. Div. of Youth & Family Servs. v. S.M., No. A-2310-11 (App. Div. Nov. 5, 2012). The history is also reviewed in detail in the trial court's April 26, 2013 opinion.

In summary, the twins are now almost ten years old, and S.M. is the only parent they have ever known. There is no allegation that S.M. has done anything inappropriate to them. However, the Division filed a complaint under Title 9 and Title 30, seeking care and custody of the twins based on an allegation that, while a seven year old girl was visiting his apartment some thirty-five years earlier, S.M. had induced her to take off her pants and had sniffed the garment.2 On remand, after hearing lay and expert testimony, a Family Part judge found that the alleged incident did not occur and, even if it did occur, S.M. posed no threat of harm to the twins. Accordingly, she dismissed the complaint.

The Division now appeals from the April 26, 2013 order dismissing its complaint; a January 4, 2013 order granting a motion to reopen the evidence, filed by the Law Guardian and the twins' guardian ad litem (GAL)3; and a February 12, 2013 order denying the Division's motion for reconsideration. The Law Guardian and the GAL join S.M. in urging that we affirm the orders on appeal.

Having reviewed the record, we find that the Family Part judge applied an incorrect legal standard in evaluating the evidence as to the pants incident. However, we find no error in the judge's conclusion that, even if the incident occurred, S.M. poses no risk to the twins. Consequently, we affirm the order dismissing the Division's complaint.

I

We briefly summarize the relevant portions of the record. The first phase of this case was handled by a judge (the first judge) who was not the Family Part judge whose orders are now on appeal (the second judge). After hearing the alleged victim of the pants incident (the complaining witness) testify by video teleconference, and hearing S.M. testify in person, the first judge found that the complaining witness was credible.4 In a brief oral opinion, the first judge stated that the incident with the pants occurred, and that there could be "no innocent explanation" for the incident. Noting that the case would be transferred to another judge thereafter, the first judge stated that he anticipated a second phase of the hearing, in which the parties would present expert testimony as to whether the twins were at risk.

The second judge dismissed the case sua sponte, based on her view that the protracted proceedings had been unwarranted and unfair to S.M. On appeal, we reversed and remanded the case for further proceedings before the second judge. S.M., supra, (slip op. at 5).

On remand, on January 4, 2013, the second judge granted the intervenor's motion to re-open the testimony as to the pants incident, finding that the first judge had unfairly precluded the defense from presenting witnesses whose testimony might contradict that of the complaining witness. Based on the intervenor's undisputed representation that the complaining witness was unwilling to provide any further trial testimony, although she had recently been deposed by the intervenor in the adoption proceedings, and that the other out-of-state witnesses were likewise unwilling to appear, the judge allowed the intervenor to introduce deposition transcripts in evidence. The judge did not make any findings about the pants incident before starting the second phase of the hearing.

At the next phase of the case, the judge held a N.J.R.E. 104 hearing to determine whether the Division's psychological expert, Dr. Douglas Martinez, would be permitted to rely on a test known as the Abel Assessment for Sexual Interest. Dr. Martinez testified that the test was used by specialists, as one of a battery of tests, to corroborate whether a subject had a sexual interest in persons other than adults. He admitted that the creator of the test, Mr. Abel, had written a letter to a scientific journal asserting that the test could not "be used to screen pedophiles from normals." Dr. Martinez later explained that the test was to be "used as part of a treatment protocol" for persons already convicted of sex offenses; it was not to be used to screen out suspected pedophiles, for example, scout leaders who might molest children.

Dr. Martinez admitted that the highest courts of three states had found that the test was not reliable. He also admitted that Mr. Abel's company kept control of the software used to analyze the test results and was unwilling to share it with anyone so that the reliability of the scoring system could be evaluated. Dr. Martinez testified that S.M. was a "reflexive responder," and conceded that research done by scientists whom he respected showed that a reflexive response pattern decreased the success rate of the test, from 79% to 36%. Dr. Martinez also stated on cross-examination that he did not regard S.M. as a "sex offender."

In an oral opinion placed on the record immediately after the hearing, the second judge applied the principles set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), in evaluating the Abel Assessment. See In re Commitment of R.S., 339 N.J. Super. 507, 535-36 (App. Div. 2001) (New Jersey courts apply the Frye standard to evaluate new scientific tests). She concluded that "Dr. Martinez was unable to establish the Abel Assessment is [a] generally accepted and reliable method for the use as a basis for expert testimony in the context of this proceeding." In particular, the test was not validated for screening potential sex offenders, but rather for treating known sex offenders.

The judge also cited scientific articles opining that the evidence was "weak" for the test's reliability and validity for use with adults, and that it was not reliable for reflexive responders. She found there was insufficient proof in the literature that the test was generally accepted in the psychology community as reliable. She further noted that a significant number of other courts had rejected the test as unreliable. She concluded that the Division had not shown "that the test is significantly reliable [so as] to be admitted in this court."

In his trial testimony, Dr. Martinez asserted that the Abel Assessment played only a small role in his evaluation of S.M., and that the judge's exclusion of the test had a "minimal effect" on his overall expert conclusions. He testified that he believed S.M. was a "sex abuser." He found S.M.'s history of devoting his life to children to be a negative rather than a positive factor, in part because S.M. had no significant romantic relationships with adults. He admitted he did not focus on whether S.M. had important non-sexual social relationships with adults.

Dr. Martinez concluded that S.M. posed a risk to the twins based on his "history of boundary violations with children" and his "highly narcissistic" personality. However, Dr. Martinez also admitted that he mistakenly believed S.M. had induced the child to take off her panties rather than her pants and he mistakenly believed the conduct had occurred more than once. He also relied on S.M.'s statement that, decades earlier, he was dismissed as a teacher for physically disciplining a student on one occasion.

The Law Guardian presented testimony from Dr. James Reynolds, a psychologist who was an expert in sexual offender assessment and treatment. Dr. Reynolds evaluated S.M. using the assumption that the incident with the complaining witness had actually occurred. Based on a series of tests he administered to S.M., Dr. Reynolds opined that S.M. presented an extremely low risk of committing a sexual offense against the twins. Dr. Reynolds emphasized that the predictive tests he used were considered "the gold standard" in the scientific community. The Division's counsel did not challenge that statement on cross-examination. Dr. Reynolds also testified that, since the only allegation against S.M. was over thirty years old, the fact that he had undergone no "sex offender" treatment was irrelevant in light of the complete absence of any more recent allegations.

S.M. presented testimony from Dr. Robert Raymond, who performed psychological evaluations of S.M., as well as a bonding evaluation with S.M. and the twins. Dr. Raymond had examined S.M. twice, the first time in 2009 and the second time in 2011. In addition to interviewing S.M., in 2011 Dr. Raymond interviewed the children's babysitters, their speech therapists, their family physician, and the principal of their school. None of those individuals said anything that caused Dr. Raymond to question S.M.'s parenting ability. The psychological tests concerning parenting ability "show[ed] that [S.M.] is a very involved, capable, fit parent." Other tests revealed that S.M. was "mentally healthy" and "resilient" with "a good self-image."

Dr. Raymond testified that during a bonding evaluation, S.M. interacted well with the twins, and they looked up to him, trusted him, and were comfortable with him. Dr. Raymond also visited the family in their home. He concluded that "the children are being very well taken care of" and that S.M. was "doing a wonderful job of parenting his daughters." He testified that they had a "very strong bond" with S.M. He opined that the children were "not at risk."

In a written opinion issued on April 26, 2013, the second judge reviewed the multiple inconsistencies between the complaining witness's testimony at the fact finding hearing, and her prior and subsequent deposition testimony and that of other witnesses. The judge also reasoned that because the complaining witness's testimony was not "corroborated," as provided in N.J.S.A. 9:6-8.46(a), it was insufficient to establish the alleged abuse. However, she also found that, assuming the allegations to be true, it still "does not constitute sexual abuse" under Title 9. She found no evidence that S.M. was "sexually stimulated" by the conduct alleged, or that he committed any sexually explicit act or an act of a sexual nature.

Next, the judge assumed for the sake of argument that the allegations were true and constituted sexual conduct, and considered whether the children were currently at risk of abuse or neglect based on the experts' testimony. She concluded that Dr. Martinez's testimony was "flawed" because his expert report relied heavily on the Abel Assessment, despite his testimony to the contrary, and he mistakenly believed that S.M. had asked the complaining witness to remove her underpants on more than one occasion. He also assumed the truth of her allegations.

By contrast, the judge found Dr. Raymond's testimony "compelling," because he not only evaluated defendant but he also conducted bonding evaluations and "interviewed several other individuals who have contact with the girls and their father." The judge also found Dr. Reynolds' psychological opinion "to be the most credible and reliable." She accepted his conclusion that "there is no risk of abuse or neglect" for the twins.

II

On this appeal, our review of the second judge's decision is limited. We will not disturb the trial court's factual findings so long as "they are supported by 'adequate, substantial and credible evidence' on the record." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super 172, 188 (App. Div. 1993)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Particular deference is afforded to the trial court's credibility determinations because of the court's "opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 578 (App. Div. 2010) (citation omitted); see also Cesare, supra, 154 N.J. at 412. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

On this appeal, the Division first argues, on several bases, that the second judge should have accepted the first judge's factual findings, and that she mistakenly concluded that the pants incident did not occur. Given our conclusions with respect to the experts' testimony, these arguments merit only brief discussion. In her written opinion accompanying the January 4, 2013 order, the judge provided a sufficient rationale for re-opening the hearing. In the unusual circumstances of this case, we also find no abuse of the judge's discretion in considering the depositions of the unavailable out-of-state witnesses.

However, we agree with the Division that the judge mistakenly construed N.J.S.A. 9:6-8.46(a)(4) as requiring corroboration even when a child victim testifies in court. This section 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.

[Ibid.]

It is clear from the wording of the statute that it requires corroboration of a child's "previous" out-of-court statements, not of a child's testimony at the fact finding hearing. To construe the statute otherwise would mean that a child who is capable of coming to court and testifying would be defenseless against the abuser unless the Division could produce corroboration for the child's testimony. That result would be completely at odds with the purpose of Title 9 to protect children from abuse.

In a different case, this error might warrant a remand and a rehearing on whether the underlying incident occurred. But not here. In this case, we find the error harmless because the record overwhelmingly supports the judge's alternate conclusion that, whether or not the pants incident occurred almost four decades ago, these children are not at risk of harm from S.M.

The judge found the experts presented by the Law Guardian and by S.M. to be more credible than the Division's expert. We generally defer to a trial court's evaluation of witness credibility, including the testimony of experts. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). We find no basis to disturb the judge's credibility findings here. In particular, we find no error in her choice to credit testimony from Dr. Raymond, who not only psychologically evaluated S.M. but actually observed him with the children, and from Dr. Reynolds, who used tests undisputed to be the "gold standard" in predicting risk. Even based on our review of a cold record, we also share the judge's view of the weaknesses in Dr. Martinez's testimony, which appeared result-oriented and based on factual inaccuracies.

This case is not the appropriate vehicle for a global determination as to the validity of the Abel Assessment. In this case, the Division failed to establish that the Abel Assessment was valid for the use for which Dr. Martinez employed it. We affirm the judge's ruling on that issue for the reasons stated in her oral opinion.

In summary, we affirm the dismissal of the Division's complaint, because the agency failed to prove that S.M. posed any risk of harm to the twins or that there was otherwise a need for care and supervision of S.M. and the twins. N.J.S.A. 9:6-8.21(c); N.J.S.A. 30:4C-12.

Affirmed.

1 Counsel advised us that the adoption proceedings are currently stayed, pending the outcome of this appeal.

2 The Division also made allegations concerning another incident, but the trial court found nothing "untoward" occurred. The Division is not appealing from that determination.

3 The GAL, who was appointed in the adoption case, was permitted to intervene in this litigation.

4 The teleconference was not videotaped; hence, there is only a transcript of the audio portion of the testimony. The second judge indicated that she would listen to the CourtSmart recording of the witness's testimony.